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UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


I 


Fron 
ROOl 


^^-<^ 


A*  TREATISE 


ON 


The  Law  of  Damages, 


BT 


GEORGE  W.  FIELD, 


AUTHOR  OF  "A  TREATISE  ON  THE  POWERS,  DUTIES  AND  LIABILITIES  OP 
COUNTY  AND  TOWNSHIP  OFFICERS." 


DES  MOINES,  IOWA : 

MILLS  &  COMPANY,  LAW  PUBLISHERS. 
1876. 


^4551 i 


Entered  according  to  Act  of  Congress,  in  the  year  eighteen  hundred  and  seventy-six, 

By   GEORGE   W.    FIELD, 
In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


STEREOTYPED  AND  PRIXTED 

BY   MILLS  &  COMPANY, 

DES  MOINES,  IOWA. 


'f 


///v/sT^ 


TO  THE 


Won.  John  F.  Dillon 


,  }.y  p., 


JUDGE  OF  THE 
UNITED  STATES  CIRCUIT  COURT, 

FOB  THE  EIGHTH  CIBCUIT, 

THIS  VOLUME  IS  RESPECTFULLY  DEDICATED, 

AS  AN  EXPRESSION 

OF  GRATITUDE  FOR  HIS  KINDNESS  AS  A  FRIEND,  OF  APPRECIA 

TION  OF  HIS  PURITY  AS  A  CITIZEN,  AND  ADMIRATION 

OF  HIS  DISTINGUISHED  ABILITY  AS  AN 

AUTHOR  AND  A  JURIST. 

THE  AUTHOR. 


PEEFACE. 


It  is  perhaps  unnecessary  to  call  tlie  attention  of  the  pro- 
fession to  the  great  variety  of  topics  discussed,  and  the  care 
and  labor  required  in  the  preparation  of  a  treatise  of  this 
kind.  It  will  be  ap]3arent  that  a  proper  presentation  of  the 
subject  must  include,  not  only  a  careful  statement  of  the 
rules,  principles,  and  elements  of  damages,  embracing  a  great 
variety  of  cases,  but  usually,  at  least  some  condensed  state- 
ment of  the  law  in  general,  relating  thereto.  Besides  this, 
much  conflict  will  be  found  in  the  decisions  relating  to  the 
rules  of  damages ;  different  rules  prevail  in  the  same  class  of 
cases  in  different  states,  or  some  element  of  damages  is  recog- 
nized in  one  state  not  recognized  in  another,  recpiiring  some 
qualification  or  modification  of  the  general  rule,  and  fre- 
quently involving  the  necessity  of  stating  the  particular  rules 
in  the  different  states.  Under  such  difticulties  and  compli- 
cations attending  a  treatment  of  the  subject,  it  may,  perhaps, 
be  reasonably  expected  that  some  inaccuracy  or  incomplete- 
ness of  statement  has  sometimes  occurred. 

The  field  of  our  jurisprudence  has  been,  within  a  few  years 
past,  greatly  extended  by  the  growth  of  several  important  com- 
mercial interests  and  the  creation  of  many  statutory  rights. 
Thus  has  arisen  most  of  the  law  relating  to  telegraphs;  to 
damages,  based  upon  statutes,  resulting  from  death;  from 
omission  to  fence;  from  the  negligent  setting  of  fires;  and 
from  the   sale   of  intoxicating  liquors.      These  topics  have 


iv  PEEFACE. 

severally  received  some  consideration  bj  me,  and  an  effort  lias 
been  made  to  furnish  all  the  most  important  recent  authori- 
ties bearing  on  them. 

The  general  plan  of  this  work  is  as  follows:  The  first 
chapter  contains  a  general  survey  of  the  subject;  the  nine 
chapters  following,  a  statement  and  illustration  of  elements, 
principles  and  rules  relating  to  it;  the  next  ten  chapters 
the  law  of  damages  applicable  in  cases  of  breaches  of  con- 
tracts; the  following  fourteen  chapters  the  law  of  damages 
in  all  the  various  classes  of  torts;  the  succeeding  one  relates 
to  damages  under  various  statutes;  the  next  chapter  discusses 
the  subject  of  nominal  damages;  and  the  last  treats  of  the 
power  and  discretion  of  the  court  to  set  aside  verdicts  for 
excessiveness  or  inadequacy. 

It  has  been  my  aim  to  furnish  the  practitioner  with  a  useful 
and  convenient  treatise,  embracing  the  latest  statement  of  the 
law  and  the  most  recent  authorities;  and  I  entertain  a  hope 
that  its  general  usefulness  may  be  largely  augmented  by  the 

system  and  method  I  have  inirsued. 
■^  G.  W.  FIELD. 

July,  1876. 


CONTENTS. 

CHAPTER  I. 

Damages — Geneeal  Peinciples — Elements. 

Section      1 .  Definition — Maxims — Theory. 

4.  Mode  of  Enforcing  Damages. 

5.  Importance  of  the  Subject. 

6.  Recent  Origin  of  much  of  the  Law  of  Damages. 

7.  Difficulty  of  framing  Rules;  their  Inadequacy. 

8.  Rules  Arbitrary,  do  not  Secure  Indemnity. 

9.  The  most  Common  Rule  Defective. 

10.  The  Maxim,  causa  proxima,  etc.,  Considered. 

11.  PoUcy  of  Limitation  of  Liability. 

12.  Other  Rules,  Maxims  and  Doctrines. 

13.  Line  of  Limitation  Difficult  to  Determine. 

14.  Effect  of  the  Common  Law  Forms  of  Action. 

15.  Forms  of  Action  Abolished. 

16.  Legal  Reform. 

17.  Policy  of  Statutoiy  Regulations. 

18.  The  Anglo  Saxon  and  Jemsh  Law. 

19.  Statutory  Provisions  for,  on  Contracts. 

20.  Circumstances  which  Affect  the  Amount  of,  etc. 

21.  Duty  of  Injured  Party  to  Protect  Himself. 

22.  Liquidated  Damages. 

23.  Matters  in  Aggravation  and  Mitigation. 

24.  When  the  Injured  Party  Contributes,  etc. 

25.  The  Motives  of  the  Wrongdoer. 

26.  Controversy  as  to  the  Proper  Basis  of  Damages. 

27.  Law  and  Fact. 

28.  Illustration's. 

30.  Power  of  the  Court. 

31.  Rules,  Artificial  and  Arbitrary. 

32.  Elements,  Principles  and  Rules. 

33.  Treatment  of  the  Subject. 


vi  CONTENTS. 

CHAPTEK  II. 
Of  the  Right  ok  Interest  of  the  Plaintiff. 

Section    34.  Essential  Element  of  an  Action. 

35.  Instances — Damnum  Absque  Injuria. 

37.  Non-Exercise  of  Powers  by  Municipal  Corporations. 

38.  Other  Cases  where  a  Municipal  Coqioration  is  not  Liable. 

39.  Publication  of  Uncalled-for  Letters. 

40.  Where  no  Right  Exists  in  Other  Cases. 

CHAPTER   III. 
Of  the  Injuky  by  the  Defendant. 

Section    4L     Legal  or  Actionable  Injury. 

42.  The  terms  Injuria  and  Damnum, 

43.  Damnum  Absque  Injuria. 

CHAPTER  IV. 

Of  Compensation  as  a  Rule — The  Limitation  of  Damages. 

Section    45.     Compensation — Consideration    of    the    Maxim,    Causa 
Proxima. 

46.  Application  in  case  of  a  Breach  of  Contract. 

47.  In  case  of  Failure  to  Deliver  Property. 

48.  Not  Always  thus  Limited  in  Torts. 

49.  Natural  and  Du-ect  Consequences  Explained  and  Illus- 

trated. 

50.  Injury  from  Fire — Where  the  Negligence  too  Remote  and 

where  not. 
5L    Conflict  of  Decisions — Irreconcilable. 

CHAPTER  y. 
Illustkations  of  a  Larger  Rule  of  Damages. 

Section.    53.    Rule  in  case  of  Officious  Interference  with  the  Property  of 
others. 
54.    Gross  Negligence  and  WiUful  Wrongs. 

57.  Fraud  Generally. 

58.  Fraudulent  Breaches  of  Contracts. 

59.  Breaches  of  Contracts  under  Circumstances  of  Aggrava- 

tion. 


CONTENTS. 


Vll 


63.  Distinction  between  Tort  and  Contract  as  to  Motives. 

64.  The  Doctrine  of  the  Common  Law  on  the  Subject— Statu- 

tory Reform. 

CHAPTEK  YI. 

Aggkavated  Tokts  and  Exemplary  Damages. 


Section 


Gross  Negligence,  Fraud,  Outrage  and  Insult. 
Conflicting  Views  of  Mr.  Greenleaf  and  Mr.  Sedgwick. 
The  Doctrine  of   Exemplaiy  Damages  Recognized  in  a 

Great  Variety  of  Cases. 
Doctrine  Not  Universal — "When  Qualified. 
Compensatory  and  Exemplary  Damages — Controversy. 
The  Intent  of  the  Wrongdoer  an  Important  Element. 
The  Rule  not  AppHcable  to  Infants  or  Non-compoies. 
Nor  to  Municipal  Corporations. 
Exemplary  Damages  Illustrated— EngUsh  Cases. 
American  Cases. 
Statement  of  the  Rule. 
Negligence — The  Rule  in  Case  of. 
Liabihty  of  Principals  for  Exemplary  Damages,  for  Acts 

of  Agents. 
To  Hold  the  Prmcipal  Liable  it  Must  Appear  that  he  is 

Culpable. 
Degree  of  Gross  NegUgence  which  Makes  him  Liable. 
Criminal  Liabihty,  or  Prosecution  and  Punishment  for  the 

Wrong. 
Criminal  Prosecution,  etc.,  in  Mitigation. 
Contraiy  Doctrine. 

Where  Exemplary  Damages  have  been  Refused. 
Principal— When  not  Liable  to  Exemplaiy  Damages  for 

the  Negligence  of  an  Agent. 

CHAPTEE  VII. 

Mitigation  of  Damages. 

Section    97.     Aggravating  Circumstances  on  the  part  of  the  Plaintiff. 

98.  Libel  and  Slander. 

99.  General  Suspicion. 

100.     General  Bad  Character  of  the  Plaintiff— When  it  May  be 

Shown  in  Mitigation. 
102.    Defendant  Allowed  to  Rebut  the  Presumption  of  Malice. 


69. 
70. 
71. 

72. 
73. 
78. 
79. 
80. 
81. 
82, 
83. 
84. 
85. 

86. 


90. 
91. 
92. 
93. 


viii  CONTENTS. 

103.  Criminal  Conversation — Mitigation. 

104.  Seduction. 

105.  What  May  be  Shown  in  Mitigation. 

106.  What  Cannot  be  Shown. 

107.  Breach  of  Promise  of  Marriage. 

108.  What  May  be  Shown  in  Mitigation. 

109.  False  Imprisonment — Mitigation. 

110.  Mitigation  in  Cases  of  Conversion  and  Trespass. 
112.  Good  or  Bad  Faith  as  Aftecting. 

114.  Trespass  and  Trover — Distinction,  as  to  Measure  of  Dam- 

ages. 

115.  Personal  Injuries — Assault  and  Battery. 

120.  Pecuniary  Circumstances  of  the  Defendant. 

121.  Bad  Character  of  the  Plaintiff— No  Mitigation. 

122.  Indictment,  Conviction  or  Fine  for  the  Offense. 

124.  Malicious  Prosecution. 

125.  Moral  GuUt  as  Affecting  Damages. 

CHAPTER  YIII. 

Of  the  Duty  of  the  Plaintiff  to  Prevent  an  Injury  and 
THE  Consequences  of  it. 

Section  126.    Statement  of  the  Rule — Apphcation. 

129.  Where  the  Injury  is  Aggravated  by  the  Plaintiff. 

130.  Instances — Neglect  of  Reasonable  means  to  Prevent. 

132.  Where  the  Plaintiff  may  Recover  Notwithstanding  his 

Negligence. 

133.  Application  of  the  Doctrine  to  Contracts  for  Services. 

CHAPTER  IX. 
Of  the  Effect  of  Stipulations  in  Refekence  to  Damages. 

Section  134.  Liquidated  Damages. 

135.  Penalty  or  Liquidated  Damages — Construction. 

137.  Where  the  sum  Designated  is  Treated  as  a  Penalty. 

138.  Where  it  is  Treated  as  Liquidated  Damages. 

139.  Instances  in  England — Where  a  Penalty. 

142.  Instances  in  England — Where  Liquidated  Damages. 

145.  English  Doctrine  Followed  in  this  Countiy. 

147.  American  Decisions — Liquidated  Damages. 

148.  Where  the  Price  of  Property  is  Fixed. 

149.  Damages  not  to  Exceed  the  Liquidated  Sum. 


CONTENTS.  ix 

150.  Cannot  generally  Exceed  the  Penalty. 

153.  Where  the  Amount  clue  is  Ceiiain — Usury, 

154.  Propositions  Deducible  from  the  Decisions — Penalty. 

155.  Where  Treated  as  Liquidated  Damages. 

156.  Rules  of  Construction. 

CHAPTER  X. 

CONTEIBUTOKT   NeGLIGENCE. 

Section  167.    The  Plaintiff  can  derive  no  Benefit  from  his  o-\vn  Wrong. 

168.  Application  in  cases  of  Negligence. 

169.  Where  the  Injury  is  Aggravated  by  want  of  Subsequent 

Care. 

170.  Wliere  the  Defendant  could  have  Avoided  the  result  of 

the  Plaintiff's  Negligence. 

173.  Instances  of  the  Application  of  the  Principle. 

175.  Contributory  Negligence — Cases  of. 

177.  Other  cases  of  Negligence,  per  se. 

178.  Instructions — Erroneous — Correct. 

179.  Ordinary  Care. 

180.  In  case  of  Fire  caused  by  Negligence. 

181.  Other  Instances  of  Negligence. 

182.  Negligence  not  Imputed  in  the  Act  of  Saving  Life. 

183.  Where  the  Injury  Cannot  be  Apportioned. 

184.  Limits  of  the  Rule  in  case  of  Contributory  Negligence. 

185.  Knowledge  by  Servants  of  Defects  causing  them  Injury — 

When  Contributory  Negligence. 

186.  Whether  the  Question  is  one  of  Law  or  of  Fact. 

188.  The  Question,  in  General,  one  for  the  Jury, 

189.  Burden  of  Proof. 

191.  Presumption  from  the  Instinct  of  Self-Preservation 

192.  Wliere  the  Injured  Person  is  a  Child. 

193.  Where  an  Infant  is  Incapable  of  Judgment. 

194.  Negligence  of  Parent  no  Defense  to  Action  by  the  Infant. 

195.  Distinction  where  the  Action  is  by  the  Parent. 

197.  Question  for  a  Jury. 

198.  Intoxicated  Persons. 

199.  Blind  Persons. 

200.  Persons  Non  Compos  Mentis, 

CHAPTER  XL 

Damages  on  Contracts  for  the  Non-Payment  of  Money. 
Section  210.    Actual  Compensation  the  Rule. 


X  CONTENTS. 

212.  Interest  as  Damages — Civil  Law. 

213.  Promissory  Notes. 

214.  Interest  at  the  Place  of  Payment. 

215.  Interest  in  Different  States. 

216.  Money  means  Coin. 

217.  Legal  Tender  Acts — Constitutional. 

218.  Applied  to  Antecedent  Debts — Constitutional, 

219.  Agreement  to  Pay  in  Gold  or  Silver  Coin,  etc. 

222.  Propositions  Deducible  from  the  Decisions. 

223.  Contracts  of  Affreightment— Sterling  Money. 

224.  When  Parties  Stipulate  for  Interest  at  a  Particular  Place. 

225.  Exchange. 

226.  Protest. 

227.  Indorsee  against  Indorser  or  Surety. 

228.  Fraud  in  Transfer— Guarranty  of  Genuineness. 

229.  Notes  Payable  in  Specific  Articles. 

230.  Bills  of  Exchange. 

232.  Fixed  Sum  as  Damages  on  Protest. 

233.  The  Lex  Loci  Contractus. 

SCALING  LAWS. 

234.  North  Carolina — Scale  of  Depreciation. 

235.  Where  Applicable. 

236.  Ordinances  of  Alabama  and  Georgia. 

237.  Where  not  Applicable. 

238.  The  Scaling  Laws  of  Virginia. 

CHAPTER  XII. 

Damages  on  Contracts  for  the  Sale  and  Delivery  of  Per- 
sonal Property — Warranty — Fraud,  etc. 

Section  244.    Seller's  Breach. 

245.  Where  the  Price  is  not  Advanced— Rule. 

246.  Where  the  Price  is  Advanced — Rule. 

248.  Reason  for  the  Highest  Price  as  a  Rule  of  Damages. 

249.  Reasons  for  a  Fixed  Rule.  ^ 

250.  Where  a  Larger  Rule  Obtains. 

252.  The  Doctrine  of  Hadley  v.  Baxendale. 

253.  General  Application  of  the  Rule. 

254.  English  Cases  Illustrating  its  Application. 

255.  Leading  American  Cases. 

256-    Damages  for  the  Non-delivery  of  Stocks. 


CONTENTS.  xi 

257.  Distinction  between  Stocks  and  other  Property. 

258.  Rule  Uniform  in  New  York— Different  in  Pennsylvania. 
359.    No  Distinction  on  Principle. 

260.  Time  and  Place  of  Delivery. 

261.  Distinction  between  an  Ordinary  Sale,  and  a  Promise  to 

Deliver  in  Payment  of  a  Debt. 

262.  Form  of  Action  as  Affecting  Damages. 

263.  Where  the  Property  has  Decreased  in  Value. 

264.  Market  value. 

267.  The  Rule  the  same  in  Torts  as  on  Contracts. 

268.  Part  Performance. 
270.    The  new  Departure. 

272.  Warranty  and  Fraudulent  Representations. 

277.  Liability  for  more  Damages  in  Certain  Cases. 

281.  Price  Paid— Former  Doctrine. 

284.  The  Price  paid  Governs  m  Illinois. 

285.  Reasons  for  the  General  Rule. 

286.  General  Exceptions  to  the  Rule, 

287.  Fraud — Rescission. 

288.  Damages  in  Case  of. 

292.    Of  the  right  to  Rescind  in  case  of  a  Breach  of  Warranty- 
Damages. 
298.    Failure  of  the  Purchaser  to  Comply— Damages. 

301.  Warranty  of  Title— Personal  Property. 

302.  Measure  of  Damages  on  Failure  of  Title. 

CHAPTER  XIII. 

Contracts  for  Services— Specific   Acts— Material. 

Section  323.  Breach  by  the  Employer. 

324.  Breach  by  the  Employe. 

326.  Part  Performance  by  the  Party  Hu-ed. 

327.  The  Doctrine  of  Entire  Contract  Relaxed. 

329.  American  Cases  where  the  Stem  Rule  was  Followed. 

330.  Middle  Ground. 

aSl.  The  Liberal  Rule  in  such  Cases— Britton  v.  Turner. 

332.  Tendency  of  the  Decisions  in  Harmony  with  Britton  v. 
Turner. 

334.  States  in  which  the  Doctrine  has  been  Recognized. 

335.  Construction  of  the  Contract. 

336.  Application  of  the  Rule. 

337.  Damages  where  the  Work  is  Accepted. 

338.  Method  of  Computing  Damages  in  such  Cases. 


xii  CONTENTS. 

339.  Refusal  of  the  Employer  to  Accept  of  Services. 

340.  Duty  of  the  Discharged  Party  to  seek  other  Employment. 

341.  Under  the  Code  of  Louisiana. 

342.  Duty  of  a  Party  to  use  Reasonable  Means  to  Prevent  Loss. 

343.  Deviation  by  Consent. 

344.  Conclusions. 

CHAPTER  XIY. 

Damages  in  Cases  of  Bailments. 

Section  359.  General  Principles. 

360.  Depositum. 

361.  Mandatiim. 

362.  Commodatum. 

363.  Pignus,  or  Pledging. 

364.  What  the  Pledgee  may  Recover  for  a  Conversion. 

365.  Locafio,  or  Hiring  for  a  Reward. 

366.  Where  the  Bailee  is  to  bestow  Care  or  Labor. 

367.  Warehouse-men. 

368.  Innkeepers. 

369.  Common  Carriers — Insurers. 

370.  The  Rule  not  Applied  to  Live  Stock. 

371.  Interruption  of  Navigation. 

372.  Where  the  Negligence  of  the  Carrier  co-operates  with 

Natural  Causes. 

378.  The  Doctrine  of  Contributory  Negligence — Application. 

374.  Non-Delivery — Measure  of  Damages. 

375.  Delay  in  the  Deliveiy. 

376.  Responsibility  Beyond  the  Terminus. 

377.  Market  Value. 

378.  Partial  Loss  or  Injury. 

379.  Sale  of  the  Goods. 

380.  Interest  as  Damages. 

381.  Where  the  Carrier  Refuses,  or  Fails  to  Transport  Accord- 

ing to  Contract. 

383.  Delay  in  Delivery,  or  Injury  to  Goods  no  ground  for 

Refusal  to  Accept.  ' 

384.  Failure  to  Deliver  Machinery,  etc. — Hadley  v.  Baxendale. 

388.  When  the  General  and  Limited  Rule  Prevails. 

389.  When  the  Larger  Rule  Prevails. 

390.  Agreement  to  Furnish  Cargo  or  Freight. 

391.  Measure  of  Damages. 

392.  Notice  of  the  Arrival  of  Goods — Damages  for  Failure. 


COKTENTS.  xiu 

393.  Refusal  to  Deliver. 

394.  Contracts  Limiting  Liability.' 

395.  Injui7  to  Passengers. 

396.  Reasons  for  the  Difference  of  Liability  between  Merchan- 

dise and  Passengers. 

397.  Delay  of  Passengers. 

398.  Injniy  Resulting  in  Death. 

399.  The  Doctrine  of  Contributory  Negligence. 

400.  Responsibility  for  Baggage. 

401.  Exemplary  Damages. 

402.  Contracts  Limiting  Responsibility  for  Damages. 

CHAPTER  XY. 

Liability  of  Telegraph  Companies. 

Section  410.  Importance  of  the  Subject. 

411.  Are  they  Common  Carriers? — Controversy. 

412.  At  least  Ordinary  Care  Required. 

413.  Measure  of  Damages — Order  for  Salt. 

414.  The  Doctrine  of  Hadley  v.    Baxendale    Exi^lained  and 

Applied. 

415.  Mistake  in  a  Message  Ordering  Bouquets— Damages. 

416.  Mistake  in  a  Message  Ordering  a  Shawl— Damages. 

417.  Delay  in  Sending  a  Message  Ordering  Property  Attached 

— Damages. 

418.  Mistake  in  a  IMessage  Ordering  Stock  Sold  and  other  Stock 

Purchased — Damages. 

419.  Mistake  in  a  Message  Ordering  Wlieat  Purchased,  etc.— 

Damages. 

420.  Delay  in  a  Message  Directing  the  Sale  of  "Lepines"— 

Damages. 

421.  Where,  by  a  Mistake,  a  Message  is  Wrongly  Directed  and 

Delayed. 

422.  Where  Damages  are  Limited  to  Interest— Mistake— Delay. 

423.  Company  Liable  for  Damages  that  Directly  and  Naturally 

Result,  etc. 

424.  Damages  Contemplated. 

425.  Limitation  of  Liability  by  Contract. 

426.  Not  Insurers — Reasonable  Rules. 

427.  Omission  or  Refusal  to  Send  a  Message— Rules. 

428.  Inferences. 

429.  Where  there  are  Connecting  Lines— Diversity  of  Decisions 
9  as  to  Liability. 


xiv  CONTEN"TS. 

430.  Can  the  Party  to  Whom  the  Message  is  Sent  Maintain  an 

Action  ? 

431.  Conclusions  Deducible  from  the  Decisions. 

CHAPTEE  XVL 

Damages  on  Bkeaches  of  Contracts  and  Covenants  Eelating 
TO  Eeal  Estate. 

Section  442.    General  Principles — Damages  on  Covenants. 

443.  The  Covenant  of  Seizin— Authority  to  Convey— Damages 

for  a  Breach — General  Rule. 

444.  Where  the  Damages  may  be  Less. 

446.  General  Doctrine  where  there  is  no  Seizin  in  the  Grantor. 

447.  The  EngUsh  Piule — American  Doctrine. 

449.  Where  there  is  a  Partial  Breach  of  the  Covenant  of  Seizin. 

450.  Damages  for  a  Breach  of  the  Covenant  against  Incum- 

brances. 

451.  Nominal  Damages— When  Recoverable. 

452.  When  the  Incumbrance  cannot  be  Removed — Damages. 

453.  Where  the  Incumbrance  has  been  Removed  by  the  Grantee. 

455.  Where  the  Grantee  Receives  Money  from  the  Grantor  to 

Remove  Incumbrances. 

456.  The  Maximum  Amount  Recoverable. 

460.  Covenants  for  Quiet  Enjoyment  and  Warranty. 

461.  The  Damages  on  a  Breach,  Consideration  and  Interest. 

462.  States  where  the  Value  at  the  Time  of  Eviction  Prevails. 

463.  Arguments  in  favor  of  the  Consideration  and  Interest,  as 

a  Rule. 

464.  Arguments  in  Favor  of  the  Value  at  the  Time  of  Eviction. 

465.  The  Duty  of  the  Author— His  Views  of  the  Question. 

466.  Interest  as  Damages. 

467.  The  Rule  as  to  Costs  and  Counsel  Fees  in  the  Eviction 

Suit,  as  an  Element  of  Damages. 

475.  Where  the  Eviction  is  only  Partial. 

477.  Wliere  the  Grantee  Purchases  the  Superior  Title. 

479.  Executory  Contracts  for  the  Sale  of  Land. 

4S0.  Where  the  Breach  is  on  the  part  of  the  Vendor. 

481.  Where  the  Vendor  Acts  in  Good  Faith— Rule. 

482.  General  Doctrine. 

484.    Illustrations  of  the  Rule  of  Damages  in  case  the  Vendor 

acts  Fraudulently  or  in  Bad  Faith. 
495.    The  Principles  of  Hadley  v.  Baxendale  Applied. 


CONTENTS. 


XV 


499.  Delay  in  the  Performance. 

500.  Partial  Breach. 

501.  Rule  in  Special  Cases. 

507.  Where  a  Third  Party  is  to  Make  Title. 

508.  Where  the  Vendee  Fails. 

509.  Damages  where  the  Grantor  Tenders  a  Deed. 

510.  Rescission  when — and  Damages  on. 

511.  When  the  Purchaser  has  given  Notes  and  has  Possession. 

512.  Damages  for  False  Representation  and  Warranty.  . 

513.  Defense  of  a  Purchaser  on  the  Ground  of  Fraud. 

514.  Breach  in  the  Stipulations  in  the  Covenants  of  a  Lease, 

515.  For  Withholding  Possession. 

516.  In  Case  of  the  Eviction  of  the  Tenant. 
518.  Agreement  to  Repair. 

CHAPTER  XYIL 

Damages  on  a  Breach  of  Promise  of  Maeeiage. 

Section  534.  Damages  in  the  Discretion  of  the  Jury. 

535.  The  Plaintiff  Should  be  Indemnified. 

536.  Exemplary  Damages  Always  Allowable. 

537.  Matters  that  Constitute  no  Defense. 
588.  Matters  in  Aggravation. 

539.    Mitigation. 

CHAPTER  XYIII. 

Common,  Statutoey  and  Othee  Bonds. 

Sectiok  545.  Damages  on  Bonds  Generally. 

546.  When  the  Damages  are  Limited  to  the  Penalty — When  not. 

547.  Consequential  and  Remote  Damages, 

548.  Common  Law  Practice. 

549.  Statutoiy  Bonds — Attachment. 

553.  Mitigation  of  Damages. 

554.  Injunction  Bonds — Elements  of  Damages  on. 
560.    Delivery,  Indemnifying  and  other  Bonds, 

CHAPTER  XIX. 
Damages  on  Policies  of  Insueance. 

Section  561.    Definition — Division  of  the  Subject. 

562.  Insurance  of  Ships  and  Cargoes. 

563.  General  Rule  of  Damages. 


xvi  CONTENTS. 

564.  Mode  of  Estimating  the  Value  of  the  Thing  Insured  on 

Open  Policy. 

565.  In  Case  of  Partial  Loss  on  an  Open  Policy. 

566.  Valued  Policies — Abandonment. 

567.  Mode  of  Estimating  Damages  on. 

568.  General  Average. 

569.  Underwi-iters  may  Repair. 

570.  Insurance  of  Freight  and  Profits. 

571.  Measure  of  Damages  on. 

572.  Application  of  Maxim  causa 2:>roxima,  etc. 

573.  Fire  Insurance — Damages. 

574.  Lessee's  Interest. 

575.  Mortgagee's  Interest. 

576.  Bailees  and  Trustees. 

577.  Vendor  on  a  Contract  of  Sale. 

378.  Application  of  Maxim  causa proxima,  etc.,  to  Fire  Insur- 
ance. 

579.  Damages  limited  by  Contract. 

580.  Rebuilding  and  Repairing. 

581.  Double  Insurance. 

586.  Subrogation. 

587.  Life  Insurance. 

588.  Damages  on  a  Life  Policy, 

589.  Creditor's  Interest. 

CHAPTEE  XX. 

Damages  in  Case  of  Torts — Injuries  to  the  Person. 

Section  599.  Damages  for  Injuries  to  the  Person. 

600.  Assault  and  Battery — Elements  of. 

601.  Aggravation. 

602.  Mitigation— Defense. 

603.  Character  of  the  Plaintiff— Defendant. 

604.  The  Defendant  may  Show  Circumstances — Res  gestce. 

605.  Whether  the  Acts  done  or  the  Words  Spoken  are  Pai-t  of 

the  Res  gestce. 

607.  Character — Knowledge  of,  may  Mitigate  Damages. 

609.  Pecuniary  Circumstances. 

611.  Aggravating  Circumstances — Conduct — Threats. 

613.  Aggravation  Owing  to  Intemperance. 

614.  Permanent  Injury. 

615.  Summary. 

616.  Complete  Defense — What  is.  * 

617.  Injury  by  Infants  and  Non-compotes. 


CONTENTS. 


xvu 


CHAPTER  XXI. 

Damages  for  Ixjcries  Resulting  in  Death. 


Section  626. 
627. 
628. 
629. 
630. 

631. 

632. 

634. 
636. 

637. 
638. 
639. 
640. 
641. 
642. 
643. 


645. 
647. 

648. 
649. 
650. 


The  Common  Law  Doctrine. 

English  Legislation  on  the  Subject. 

The  New  York  Statute. 

Statutes  of  Yai-ious  States — Similarity  of. 

Damages  Actual  and  Pecuniary— Not  Exemplary— Noth- 
ing Allowed  for  Physical  or  Mental  Suffering. 

Damages  frequently  Limited  by  Statutes — Construction  of, 
when  not. 

Vfhat  it  is  Competent  to  Show — Expectation  of  Life. 

Instances. 

Legal  Right  to  Benefit  from  the  Life  not  Essential— Pre- 
sumiDtions. 

Value  of  an  Annuity — Carlisle  Tables. 

Statutes  Have  no  Extra-Territorial  Operation. 

Widow — Children— Wealth  of  the  Defendant. 

Death  of  a  Child — Limitation. 

In  Pafi  Delicto. 

Damages  in  Other  and  Special  Cases  Resulting  in  Death. 

Distinction  Between  Injuries  to  the  Person  of  Deceased  and 
Injuries  to  Others  from  the  Death— Death  Instan- 
taneous or  Otherwise. 

The  Statutes  of  Iowa — Exemplary  Damages  under. 

California  Statute — Exemplaiy  Damages  under. 

The  Effect  of  a  PoHcy  on  the  Life  of  the  Deceased. 

Who  Entitled  to  Recover. 

Conclusions. 


CHAPTER  XXII. 

Negligence — Gross  JSTegligence. 

Section  659.  Neghgence  a  Tort — Definitions. 

661.  Law  and  Fact. 

662.  When  a  Question  for  the  Court. 

663.  The  Question  Usually  one  for  the  Jury. 

664.  For   what   Consequences    the  Negligent   Wrongdoer  is 

Answerable — Negligent  Fires. 

666.  Successive  NegUgence  of  Different  Parties. 

667.  Damages  in  case  of  Negligence — Elements  of. 

668.  Illustrations. 

669.  Damages  to  Real  Property  from  Negligence. 


xviii  CONTENTS. 

670.  Personal  Property — Damages. 

671.  Damages  in  Other  Cases. 

CHAPTER  XXIII. 
False  Imprisonment. 

Section  679.  General  Rule— Illustrations. 

681.  Matters  in  Aggravation — Exemplary  Damages. 

682.  Mitigation. 

683.  What  May  be  Shown  in  Defense. 

CHAPTER  XXIY. 

MALICIOtJS    PROSECUTION. 

Section  685.    Elements  of  Damages  in  Case  of. 

686.  Elements  of  the  Action. 

687.  .  Measure  of  Damages. 

688.  Mitigation. 

689.  Conclusion. 

690.  Defense. 

CHAPTER  XXY. 

Libel    and    Si^nder. 

Section  691.  General  Rule  and  Elements  of  Damages. 

692.  Contribution  between  the  Wrongdoers. 

693.  Mitigation. 

694.  Aggravation  and  Exemplary  Damages. 

695.  Pecuniaiy  Condition  of  the  Defendant. 

696.  Amount  of  Damages. 

CHAPTER  XXYI. 

Seduction  and  Criminal  Conversation. 

Section  697.  Remedy  for  the  Common  Law. 

698.  Damages — General  Rule. 

699.  Aggravation. 

700.  Mitigation  and  Defense. 

702.  Amount  of  Verdict. 

703.  Seduction  of,  and  Enticing  Away  a  Wife. 


CO^^TENTS. 


XIX 


CHAPTER  XXYII. 
Fraud  axd  Deceit. 

Section  704.  General  Principles  Relating  to  Fraud. 

705.  Fraud  in  the  Sale  of  Propeiiy. 

706.  Damages  in  Case  of  Fraud. 

707.  Defendant  Answerable  for  Contemplated  Damages. 

708.  False  Representations  in  Reference  to  Land. 

709.  Waiver  of  Fraud. 

710.  What  no  Defense — Surety — Indorsee — Principal. 

712.    When  the  Buyer  may  Sell  the  Property  and  still  Recover. 

CHAPTER  XXVIII. 

Patents. 

Section  713.  Power  of  Congress — Infringement  a  Tort. 

714.  Actual  Damages. 

716.  Treble  Damages. 

717.  What  may  be  Allowed  as  Damages. 

718.  The  Defendant  may  be  Required  to  Account. 

CHAPTER  XXIX. 

Copyrights  ajsid  Trade-Marks. 

Section  720.  Provisions  of  the  Constitution — Power  of  Congress. 

721.  Damages — Books,  etc. 

722.  Damages — Maps,  Charts,  etc. 

723.  Damages — Dramatic  Compositions. 

724.  Different  Remedies  for  an  Infringement. 

725.  Literary  Piracy. 

726.  Ti-ade-Marks. 

727.  Damages  for  Infiingement. 

CHAPTER  XXX. 

Injuries  to  Property — Trespass. 

Section  730.    Plan  of  Treatise — What  it  does  not  Embrace. 

731.  Trespass  Defined. 

732.  Damages  for  Trespass  to  Property — General  Principles. 

734.  Injury  to  Real  Estate. 

735.  Injm-ies  to  the  Possession  of  Real  Property. 

736.  Damages  for  Injuries  to  Trees. 


XX 


CONTENTS. 


737.  Tenants — Injury  to  Rights  of. 

738.  Limits  to  Tenant's  Damages. 

739.  Profits — Sometimes  an  Element  of  Damages. 

741.  Aggravation — Exemplary  Damages. 

742.  Water  Rights  and  Injuries  by  Water — General  Rule. 

743.  Limitation  of  Damages. 

744.  Where  a  Trespass  Benefits  as  well  as  Injures. 

746.  Mining — Rule  of  Damages. 

747.  Nuisance. 

748.  Rule  of  Damages. 

750.  Statutory  Provisions. 

751.  Waste — Damages. 

CHAPTER  XXXI. 

Damages  foe  the  Nonfeasance,  Misfeasance  and  Malfeas- 
ance OF  Public  Officers. 

Section  760.  Judicial  Officers — Liability — General  Principles. 

761.  Damages. 

762.  Ministerial  Officers — General  Rules. 
764.  Liability  on  Civil  Process. 

766.  Presumptions. 

767.  Neglect  to  Levy  and  False  Return. 

768.  Property  Wrongfully  Taken  on  Process. 

769.  Escape. 

770.  Consequential  Damages. 

771.  Exemplary  Damages. 

772.  Mitigation. 

773.  Board  of  Supervisors. 

774.  Sureties  on  Official  Bonds. 

775.  Attorneys — Liability  of. 

CHAPTER  XXXII. 

Injuries  to  Personal  Peopertt. 
Section  780.    Trespass— The  General  Rule  of  Damages. 
781.    Where  the  Property  is  Taken  or  Destroyed. 
782..    Where  the  Property  is  Only  Injured. 
783.    Aggravation,  and  Exemplaiy  Damages. 
785.    Mitigation. 

CHAPTER  XXXIII. 

Trover  and   Conversion. 

Section  791.    Distinction  between  Trespass  and  Trover— General  Prin- 
ciples. 


CONTENTS.  xxi 

792.  Damages  for  Conversion. 

793.  Cause  of  Controversy — Time  and  Place  of  Value. 

795.  Value  at  the  Time  of  the  Conversion. 

796.  Exception  to  the  Eule. 

797.  Larger  Rule  of  Damages. 

799.  New  York— Rule  of  Fluctuating  Value. 

800.  Pennsylvania — Rule  in. 

801.  Mississippi — Rule  Adopted. 

802.  Cahfornia. 

803.  Other  States. 

804.  The  Rule  Should  be  the  Same  as  on  a  Breach  of  Contract 

to  Dehver  Personal  Property. 

805.  Damages  Varied  with  the  Form  of  the  Action. 

806.  Technical  Doctrine  in  Different  Actions. 

807.  Reform  in  Practice  and  Procedm-e. 

808.  Argument  for  the  Fixed  Rule. 

811.  Argument  against  the  Rule  of  Fluctuating  Value  in  case 

of  Stocks. 

812.  Argument  for  the  Rule  of  Highest  Value. 

813.  The  Distinction  between  Stocks  and  other  Property  Con- 

sidered. 

814.  The  Sounder  Rule  Between  the  Extremes. 

815.  Where  the  Property  is  Returned — Rule. 

816.  Mitigation. 

817.  Preiium  Affectionis — Articles  of  Virtu. 

818.  Accession. 
820.  Confusion. 

721.  Exemplary  Damages  for  the  Conversion. 

822.  Where  the  Interest  is  Qualified  or  Limited. 

823.  Conversion  of  Notes  or  other  Choses  in  Action. 

CHAPTER  XXXIY. 

Replevin. 

Section  825.  General  Principles — ^Damages. 

826.  Measure  of  Damages. 

828.  Thne  of  Valuation. 

829.  Where  the  Defendant  Succeeds. 
880.  Exemplary  Damages. 

831.  Detention,  and  Deterioration  in  the  hands  of  the  Plaintiff. 

832.  Property  Lost  or  Destroyed. 

833.  Special  Damages  by  the  Plaintiff. 

834.  Special  Damages  by  the  Defendant. 


XXI 1 


CONTENTS. 


835.  Where  the  Defendant  has  Enhanced  the  Value  of  the 

Property. 

836.  Vindictive  Damages  where  the  Proceedings  are  Malicious 

or  Willfully  Wrong. 

837.  Extent  of  Interest. 

838.  Mitigation. 

CHAPTER  XXXY. 

Damages  Undek  Statijtoey  Peovisioxs. 


Section  845. 

846. 
847. 
848. 
849. 
850. 
851. 


Private  Property  Taken  for  Public  Purposes — Eminent 

Domain. 
Damages. 

Witnesses — Damages  for  Failure  of. 
Double  and  Treble  Damages. 
Statutes  Against  Setting  Fires. 
Statutes  Requiring  Railroad  Companies  to  Fence,  etc. 
Damages  under  Statutes  for  Injury  Resulting  from  the 

Sale  of  Intoxicating  Liquors. 

CHAPTER  XXXVI. 
Nominal  Damages. 

Section  860.    Wrongful  Acts  Import  Damages. 
861.    Instances. 
868.    The  Maxim  de  minimis  non  curat  lex,  Considered. 

CHAPTER  XXXVII. 

Setting  Aside  Verdicts. 

Section  873.  "When  the  Power  Exercised. 

874,  Instances  where  Refused. 

878.  Instances  where  Verdicts  have  been  set  Aside. 

881.  Verdicts  in  cases  of  Criminal  Conversation. 

882.  Reducing  Verdicts — Excessive  Damages. 

884.  When  a  Remittitur  will  not  Avail. 

885.  Excessive  Verdicts  in  other  Cases. 

886.  Setting  Aside  Verdicts  for  Inadequate  Damages. 

888.    When  Courts  will  Refuse  to  set  aside  Verdicts  on  the 
Ground  of  Inadequacy. 


INDEX  TO  CASES  CITED. 


Aaron  V.  Second  Av.  R.  Co.  165,  483 

Absor  V.  French 36 

Abraham  v.  Reynolds 17  J 

Abram  v.  Nunn 313 

Abrams  v.  Kounts 13-5 

Abbott  V.  Gatch 241 

Seebor 454 

Achburner  v.  Bachen 337 

Ackley  v.  Chester 610 

Ackerly  v.  Haines ■_•  561 

Ackerson  v.  Erie  R.  Co 25,     92 

Acton  V.  Blundell 36 

Adams  Exp.  Co.  v.  Egbert 241 

Carlise..l59,  183 

Cordis 207 

Smith 551 

Wagoner  . . .  478 
Mid.  R.  Co..  684 

Adairs  v.  Wright 194 

Adair  v.  Boyle 423 

Adamson  v.  Rose 385 

Adcockv.  Marsh 554 

Adins  V.  Smith 116 

^t.  Ins.  Co.  V.  Jackson 461 

Ah  Thaie  v.  Quan  Wan 442 

Ainsworth  v.  Bowen 630 

Akerly  v.  Vilas 398 

Ackron  v.  McCombs 41 

Albert  V.  Bleeker  Street  etc.  R. 

Co. 166,  520 

Alden  v.  Dewey 577 

Alderman  v.  French 114,  115 

Aldrich  v.  Reynolds 442,  443 

Palmer 68,  483 

Algier  v.  Black 284 

AUard  v.  Anderson 406 

Allen  V.  Anderson 274  403 

Atkinson 414 

Brown 445 

Blunt 578 

Cm-les 254,  298 

Dewey     578 

Fox.: 660 

Tln-aU 302 


PAGE 

Allen  V.  McKibbon 289 

Jarvis 281 

F.  Ins.  Co 4-58 

M.  Ins.  Co 4-55 

Alexander  v.  Milwaukee 41 

Rintels 225 

Thomas 685 

Jacoby 439 

Helber 615 

Alexandria  etc.  R.  Co.  v.  Burke.  315 

Allison  v.  Chandler 9,  42,     51 

Alna  V.  Plummer 419 

Alsop  V.  Yates 175 

Althorf  V.  Wolfe 515 

Alyn  V.  Boston  etc.  R.  Co 166 

A.  Oil  Co.  V.  Richardson 429 

Alpine  v.  Morton 115 

Ames  V.  Longstreet 89 

Amiable  Nancy 100 

Am.  Ins.  Co.  v.  Ogden 452 

Am.  L.  &  H.  Ins.  Co.  v.  Robert- 

shaw 469 

Amoskeag  etc.  v.  Spear 585 

Amsdenv.  Dubuque  etc.  R.  Co..  669 
A.  Mut.  Ins.  Co.  V.  Housmger. .  462 

Amy  V.  Long 617 

Anderson  v.  Davison 375 

Tarpley 696 

R.  R.  Co 100 

Andrea  v.  Stemkampler 275 

Andrew  v.  Pearce 372 

Andrews  v.  G.  Woolen  Co 442 

Durant 29,  628 

Askey 557 

Pond 196,  206 

Angel  V.  M.  &  M.  R.  Co. 320,  .324, 

325,  341 

Angelrod  v.  Del.  Ins.  Co 465 

Angier  v.  Taunton  Paper  Man. 

Co 648,  6-56 

Annapolis  &  E.  R.  Co.  v.  Gantt.  531 

Anthony  v.  Gilbert 24 

Antoine  etc.  v.  Ridge 621 

Appel  V.  Woltman 201 

Apps  V.  Day 702 

Archer  v.  Williams '^^^ 


XXIV 


CASES  CITED. 


PAGE 

Archer  v.  Dunn 195 

Ai-lington  v.  Will.  R.  Co 329 

Armitage  v.  Haley 696,  700 

Armory  v.  Delamire  ....'. 311 

Armstrong  v.  Percy 283,  284 

Pierson,  550,  551, 

553,  563 
Arnold  v.  Commonwealth  .....  610 

Kelly 629 

Potter 207 

Suffolk  Bk 233,  245 

AiTOwsmith  v.  Gordon 15 

Arthur  v.  Moss 268 

Artz  V.  The  Chicago  etc.  R.  Co. 

166,  174,  180 

Ash  V.  Marlow 548 

Pullman 573 

Ashley  v.  White 3,  679 

Ashe  V.  De  Rossett 241 

Ashley  v.  Harrison 45,  550 

Ashworth  v.  S.  E.  R.  Co 534 

Astley  V.  Weldon 139 

Aston  V.  Haven 340 

Atkins  V.  Johnson 650 

Atkinson  v.  Bell 280 

Atkinson  etc.  R.  Co.  v.  Sanford,      9 

Atkyns  v.  Krinnier 145 

Atlantic  R.  Co.  v.  Dunn.  .25,  68,     93 

Atlas  Bk.  V.  Doyle 210 

A.  T.  &  S.  F.  R.  Co.  V.  Sanford,  523 

A.  T.  R.  Co.  V.  McCen-en 544 

Atwood  V.  Gilaspie 697 

Un.  Mut.  Ins.  Co....  462 

Anchmuty  v.  Harn 90 

Auding  V.  Perkins 268 

Aurick  v.  The  Miss.  etc.  R.  Co. .  162 

O'Hara 621 

Aurora  (City  of)  v.  Gillett 40 

Reed  . . .  .37,    40 
Aurora,  etc.,  R.  Co.  v.  Grimes  . .  158 

Austin  V.  HiUiers 700 

Wilson 25,  69,  107 

Averitt  V.  Merrill 673 

Avery  v.  Ray 474,  475 

Ayer  v.  Bartlett 687' 

Starkey 673 

Ayres  v.  Hart.  Ins.  Co 460 

Aylosworth  v.  Chic.  etc.  R  Co 675 

Ayliff  v.  Hardy 686 


B 


Babcock  v.  Gill 651 

Montgomery  Co.Mut. 

Ins.  Co .'^ 

Bacoc  V.  Keith 701 

Bacon  v.  Bronson 566 

Town 545,  546,  547 


PAGE 

Backenstrossv.  Stahler.125,  629,  655 

Backhouse  v.  Bononi 32 

Backus  V.  McCoy 372 

Bachelder  v.  Heagan 49 

Baden  v.  H.  Ins.  Co 458 

Baddely  v.  Mortlock 434 

Badge  v.  Hughs 678 

Badgley  v.  Decker 557 

Baggs  V.  N.  Y.  C.  R.  Co 323 

Baker  v.  Bolton 491 

Corbett 383,  398,  413 

Drake 635 

Freeman 61-5 

Johnson 669 

Mair 211 

Martin 220 

Taylor 592 

Troy  &  Rutland  R.  Co.  393 

Wheeler 655 

Bailey  v.  Damon 337 

Hide 551 

Scott 375 

Shaw 327 

Bau-d  V.  Morford 159,  174 

Tolliver 138,  147 

Bank  v.  Burton 205 

Green 221 

Bankard  v.  Babcock 426 

B  'k  of  Montgomery  v.  Reese.  224,  636 

Rome  V.  Mott 614 

State  V.  Burton 636 

Bardwell  v.  CoUie 284 

Baldwin  v.  Bennett 241 

Munn 403,  405 

U.S.  Tel.  Co... 345, 
355.  356.  359,  360,  361 

West.  R.  Co 479 

Bales  of  Cotton 453 

Bad  V.  Bruce 68,  118,  557 

Ballentine  v.  Robinson 280,  282 

BaUow  V.  Farnum 483,  535 

Balsley  v.  Holfman 436 

Baltimore  etc.  R.  Co.  v.  Bloch- 

er. 25,     90 

Baltimore  etc.  R.  Co.  v.  Bremg.  67 
Baltimore  etc.  R.  Co.  v.  Brown. .  325 
Baltimore  &  0.  R.  v.    Fitzpat- 

rick 159,  180 

Baltimore   etc.   R.  Co.  v.  State 

160,  ISO,  503,  506,  519 
Baltimore  etc.  Ins.  Co.  v.  Dal- 

rymple 630 

Bait.  F.  Ins.  Co.  v.  Lovey 463 

Baltimore  v.  State 180,  187 

Bancroft  v.  Acton 579 

Banders  v.  Banders 194 

Bangor  R.  Co.  v.  McComb 669 

Bk.  V.  Hook 220 

Bannister  v.  Roberts 194,  195 


CASES  CITED. 


XXV 


Bannon  v.    Baltimore    etc.   R. 

Barber  v.  Corbert 370 

Kelbuni 69 

Barben  v.  Police  Jury 41 

Barbour  v.  Nichals 57,  40o 

Barcus   v.  Hannibal  etc.  R.  Co. 

and  Paris  Plank  R.  Co 305 

B.  &  I.  R-  Co.  V.  Snider 486 

Barker  v.  Green 609 

Savage 167 

Barlow  v.  McKinley. .  .377,  382,  383 

Barnard  v.  Haggis •  •  ■  488 

Poor 25,    49 

Conger 232 

Barned  v.  Hamilton 244 

Barnes  v.  Martin 109 

Allen 562 

Barnet  v.  Cecil 230 

Reed 610 

Barnum  v.  A^mdusen. .  .56,  272,  591 

Bamland  v.  Eidson. 5.>3 

Barnhard  v.  Bait.  etc.  R.  Co b:>9 

B.  &S.  R.  Co 519 

Barnwell  v.  Mitcliel 220 

Bartlett  v.  Blanchard 2b2 

Crozier 32 

Crittenden 584 

Kidder 666 

Barrett  v.  Porter 374,  -381 

Barry  v.  Bennett 629 

Ingles 47o 

Barrow  v.  Arnaud 620,  648 

Robichaux 444 

Barter  v.  Wheeler 326 

Bartelle  v.  Lallande 304 

Barthol  V.  Fox 661 

Bartle  v.  Meritt 6bo 

Barton  v.  Fiske •  •  44o 

8t.  L.  etc.  R.  C0...I68, 

181,  519 

Kavanaugh 545 

Barton's  Hill  Coal  Co.  v.  Reid 

176,  485 
Barton's  Hdl  Coal  Co.   v.  Mc- 

Guire 485 

Bartley  v.  Richtmyer 118,  557 

Bartramv.  Stone ••  •••  4(b 

Bassett  v.  Salsberry  Man.  Co. . .  680 

Bassvs  V.  Ambrose 138,  lo.i 

Batciielder  v.  Sturgess 37.5 

Bates  V.  Courtright 122 

Ray 598 

Steinall 630 

Bathisill  v.  Reed • 5?o 

B.  &  S.  Ice  Co.  V.  R.  Ins.  Co. . . .  4-39 

Battey  v.  Holbrook 4.j8 

Bauer  v.  Clay 5o9 

Baulien  V.  Parsons •■■•■■'o    o-a 

Baxter  v.  Bradbury 367,  obb,  otO 


Baxter  v.  Ryerss 384 

Bazin  v.  Steamship  Co 322 

Bagley  v.  Peddie 138,  155 

Beach  v.  Miller 377 

Beale  v.  Railway  Co 684 

Hayes    153 

Beals  V.  Home  Ins.  Co 462,  463 

Olmstead 262 

Bean  v.  Simpson 247 

Beardsley  v.  Swan 5^4 

Maynard 114,  115 

Bridgman 115 

Beatty  v.  Gilmore 158 

Beaupland  v.  McKeen 395 

Becker  v.  Hooker 300 

Beckford  v.  Hood  610 

Beckwith  v.  The  Trustees  etc 1-53 

Beecher  v.  Dennison 627 

Bee  Printing  Co.  v.  Hickborn. . .  291 
Beers  V.  Husatonic  etc.  R.  Co...  158 

Behrens  v.  McKenzie 442,  448 

Beisigel  v.  N.  Y.  C.  R.  Co 5-35 

Belden  v.  Nicholay, 233,  245 

Belfontame  etc.   R.  Co.  v.  Sny- 
der   186 

Belknap  v.  Boston    etc.  R.  Co. 

68,  78,  92,  128,  479,  5-54,  695 

Belknap  v.  Railroad 691 

Bellv.  McCullough -579 

Mid.  R.  Co 54,91,  622 

Morrison 66,     90 

Ryerson 567 

Belts  V.  Burch 142 

Beniamin  v.  Wheeler 40 

Haney.. 428 

Benjamin 6-52 

Bement  v.  Smith 281 

Bench  v.  Merrick 431 

Benedict  v.  Bachelder 278 

Bennett  v.  Alcott 5-58 

Brown 440 

Jenkins 385 

Judson 566 

Lockwood     54,     13:^, 

620,  631,  663 

Mathews 117 

Smith 562,  563 

Thompson 594 

Benson  v.  N.  J.  R.  &  Tr.  Co.. . .  336 

Bent  V.  Dewey 283 

Berge  v.  Gardner 159,  486 

Berkshire  Ins.  Co.  v.  Sturges 566 

Berrin  v.  Wright 206 

Berry  v.  Da  Costa lU 

Dwinell 248 

Fletcher 593 

Vantrico 655 

Wisdom 139,  158 

Bessey  v.  Oliott 484 

Best  V.  Allen 67,    68 


XXVI 


CASES  CITED. 


Betts  V.  Lee 652 

Bevard  v.  Hoffman 608 

Beveridffe  v.  Welch 109,  688 

Bever  v.  Tanner 669 

Bickelv.  Colton...233,  630.  636,  650 

Bickford  v.  Page 368 

Bidault  V.  Wales 573 

Biddle  v.  Reed 428 

Hussman 670 

Bieseigal  v.  N.  Y.  Cent.  R.  Co. .  164 

BigeloAV  V.  Reed 158 

Jones 385 

Bill  V.  Mon-ison 685 

Billings  V.  Yanderbeck 232 

Bingham  v.  Richardson 155 

Binns  v.  Stokes 114 

Birchard  v.  Booth 68,  125,  473 

Bn-cher  v.  Parker 445 

Bishop  V.Price 298 

Pentland 456 

Bislev  V.  Woods 256 

Bissellv.  N.  Y.  Cent.  R.  Co....  319 

Baker 489 

Bissinger  v.  Dickinson 617 

Bimey  v.  N.  Y.  &  W.  Tel.  Co. .  358 

Haun 372 

Black  V.  Camden  R.  Co 328 

Blackwell  v.  Justice  of  La-\vrence 

County  ....   386 

Blake  v.  Bumham 368,  385 

Daman 478 

Ex.  Mut.  Ins.  Co 464 

Mid.  R.  Co. ..  343,  501 

502,  503,  516 

Blakelv  v.  De  Due 159 

Blanchard  etc.  v.  Warner 579 

Blasdalc  v.  Babcock 284 

Blewitt  V.  Evans 284 

Bliss  V.  Ball 594 

Blodgett  V.  Brattleboro 109,  610 

Blofield  V.  Payne 587 

Blossom  V.  Knox 368 

Blood  V.  Saver 608 

Bloodgood  V.  Mohawk    669 

Blow  V.  White 226 

Blumenthall  v.  Brainard 323 

Blunt  V.  Little 696 

McCormick 603 

Blydenburgh  v.  Tliayer 210 

Welch 248 

Bh-the  V.  Thompkins 538 

Boardman  v.  Keeler 303 

Boust  v.  Frith 289 

Bockman  v.  ]3erryhiU 695 

Bodley  v.  Reynolds 631,  655 

Bodwell  V.  Swan 114 

Osgood 555 

Bogel  V.Bell 611 

Bohn  V.  Dunphy 625 

Boice  V.  McAllister 114 


PAGE 

Boice  V.  Vincent. 233 

Boland  v.  Miss.  R.  Co 486 

Bolton  v.  Crowther 41 

Baxter 533 

Bolles  V.  Beach 386 

Bond  V.  Hilton    680 

Boudurantv.  Crawford,  271,  566,  563 
Bonesteel  v.  Bonesteel,  538,  539,  544 

Bonsall  V.  McKay 24,     88 

Borter  v.  Bradley 381 

Borradaile  v.  Brunton 240 

Borrekins  v.  Bevan 266.  275 

Bonies  v.  Hutchinson 234,  239 

Botoler  v.  Bell 114 

Boton  V.Miller 118 

Boorman  v.  Nash 242,  278 

Booth  V.  Powers 656 

Boucher  v.  Noidstrom 69 

Boulard  v.  Calhoun 92 

Bouton  V.  Reed 251 

Bowen  v.  Stodard 208 

L.  E.  Tel.  Co 347,  352 

Bower  v.  Merrill 599 

Bowler  v.  Lane 92,  514 

Bowlin  V.  Nye 311 

Bowman  v.  Cornell 612 

Teal 311,  332 

Troy  etc.  R.  Co 164 

Bownin  v.  Elliott 550 

Bowser  v.  Cessna 403 

Boyce  v.  Anderson 319,  342 

Cal.  Stage  Co 686 

Boydv.  Fritt 238 

Boylan  v.  Huguet 630 

Boyle  V.  Brandon 50 

Boynton  v.  PhiUips 702 

Kellogg 119 

Boys  v.  Ancel  139,  142 

Bracegridle  v.  Bailey 114 

Brackett  v.  McNair 330 

Morse 293 

Bradburn  v.  Gt.  W.  R.  Co 515 

Bradley  v.  Geisselman 620 

Heath 115,  552 

King 256 

Mortlock 119 

Rea 262,271,  569 

Brady  v.  N.  W.  Ins.  Co 463 

Sparks •_•  •  383 

Brainard  v.  Jones 151,  4-36 

Braman  v.  Bingham 375 

Hess 209 

Brand  V.  Schnectady  etc.  R.  Co.    164 

Troy  etc.  R.  Co 310 

Brandt  v.  Foster 372,  385,  395 

Brasher  v.  Davidson 233 

Brass  v.  Worth 634 

Breese  &  Mumford  v.  U.  S.  Tel. 

Co 345 

Breese  v.  U.  S.  Tel.  Co 358,  359 


CASES  CITED. 


XXVI 1 


PAGE 

Bmtenbacli  v.  Turner 201 

Brewer  v.  Temple 63 

Brewster  v.  Edgerly 138 

Waketield 153,  194 

Bridge  v.  Grand  T.  R.  Co..  .134, 

160,  517 

Livingston 697 

Bridger  v.  Pierson 397 

Bridgeman  v.  Steamboat  Emily, 

327,  331 

Hopkins 114 

Brierly  v.  Kendall 628,  648 

Briggs  V.  D"Aquin 109 

Gleason 611 

N.  Y.  C.  R.  Co 332 

Brigham  v.  Hawley 286,  305 

Bright  V.  Boyd ,393 

Rowland 1-53 

Brinlvmeyer  v.  The  City  of  Evans- 

ville 32 

Brinkerhoff  V.  Phelps  . .  .29,  392, 

405,  414 

Brinley  v.  N.  Ins.  Co 451,  657 

Briscoe  v.  McElwean 621 

Bristol  etc.  R.  Co.  v.  Collins 360 

Eastman.  488 
British  Columbia  Saw.  Co.  v.  Net- 

tleship 240 

Britton  V.  S.  W.  R.  Co 482 

Turner 293,296, 

297,  298,  299 
Brizsee  v.  Maybee. .  .25.  90,  631, 

639,  655,  662,  663 

Brobst  V.  Skillen 612 

Bromby  v.  Wallace 561 

Bron  V.  Roj'al  Ins.  Co 463 

Bronson  v.  CofSn 377 

Green 24 

Rodes 203 

Southbuiy 187,  486 

Brooks  V.  Hubbard 211 

Penn  R.  Co 92 

Moody 375,  379 

Brown  v.  Brewer 87 

Brooks 114,  552 

BrowTi 601 

Chadsey 65,  541 

Collins 489 

Cotton  Co 176 

Cummings 50 

Eagerton 262 

Elliott 173 

Emerson 681 

European  etc.  R.  Co. .  166 

Foster 287 

Foust 226 

Hamilton 421 

Han.  k  St.  Joe  R.  Co. 

162,  168,  180 
Hayes 629 


PAOE 

Brown  v.  Jones 442,  444 

Kendall 175 

Leach 270 

Lynn 310 

Maulsby 139,  1-53 

Maxwell 158,  163 

Robins 32 

Sax 651,  652 

Seymour 700 

Tanner 689 

Tyler 446 

Warren 67 

Bro%Amell  v.  Hawkins 315 

Browner  v.  Davis 680 

Brownwell  v.  Flayler 164 

Bruce  v.  Davenport 278 

Priest 128,477,  473 

Brunt  V.  Foster ,368 

Brushaber  v.  Stegemann...  539,  541 

Bryam  v.  McGuire 26 

Bryan  v.  Haixison 225,  226 

Rick 341 

Brj-ant  v.  Am.  Tel.  Co 347, 

349,  352,  355 

GMden 597 

Hambrick .58,  418 

Jackson 48-5 

Rich 103,  104 

Stilwell 254,  292 

Buck  V.  Hermance 576 

Buckley  v.  Dawson 401,  404 

Knapp,  25,  66,  67,  89, 

479,  550,  554,  555 

Smith 544 

Buckmaster  v.  Grundy 386 

Buckwatter  v.  BJackrock  B.  Co.    669 

Buddington  v.  Knowles ...  702 

Buel  V.  Chapin 519 

N.  Y.  Cent.  R.  Co 172 

Buford  V.  Gould 259 

Tucker 316 

Bull  V.  Griswold 67 

Bullard  v.  Harrison 36 

Bullett  v.  Clement 608,  616 

Bullock  V.  Baljcock 484 

Burbanks  v.  Pillsbury 377 

Burchard  v.  Booth 475 

Burden  v.  Mayor  of  Mobile 601 

Burdett  v.  Withers 425 

Burdick  v.  Won-all 10,  592 

Burgs  V.  Cedar  Falls  R.  Co 277 

Crump 155 

Gardiner 168,  174 

Burgen  v.  Sharer 444 

Burgess  v.  A.  Ins.  Co 458 

Burk  v.  Broadway  R.  Co 188 

Burke  v.  Clements 376 

Norwich  etc.  R.  Co 177 

Burlington  v.  Gilbert 40 

Burly  V.  Bethune 608 


XXVlll 


CASES  CITED. 


PAGE 

Burr  V.  Beers 360 

Burr 189 

Todd 405 

Burrage  v.  Crump 138 

Burs  V.  Spoor. 311 

Bumard  v.  Haggis 484 

Burnap  v.  Wright 50 

Burnett  v.  Hyde 5*3 

Reed 68 

Simpkins....l20,  431, 

432,  434 

Phalon • 587 

New  Orleans 32 

Burt  V.  Dewey 268 

Butcher 633,  635 

Foster 383 

Burton  V.  Fulton 611 

McCauley 434 

McClelland 673 

Reeds 379,  385 

Thompson 702 

Wilkinson 318 

Bush  V.  Baldrey 204,  207 

Canfield 248 

Cole 406 

Holmes 232 

Pettibone 485,  487 

Bassy  v.  Donaldson 3,  619 

Buttv.  Gould 473 

Butts  V.  Olds 207 

Butterfield  v.  Forester. .  134,  159,  175 

Butler  V.  Collins 620 

Eschleman 431 

Honvitz 203 

Kent 521 

Mehrling  121,  659,660,  665 

Mercer 107 

Millett 698 

St.  B.  Milwaukee 497 

Yule 377 

Buzzel  V.  Laconi  Man.  Co 176 

Byran  v.  Jackson 116 

Byrd  v.  The  State 151 


c. 


Cable  V.  Cooper 60S 

Cabot  V.  Christie 421,  566 

Cady  V.  Allen 375,  377 

Cahill  V.  Eastman 486 

Calcraft  v.   Earl  of  Harborough 

117,  563 

Caldwell  v.  Brown 176 

Kirkpatrick 383 

Murphy 483 

N.  J.  Steamboat  Co. 
91,   92,  100,  320, 

340,  341,  690 
Roberts 702 


PAGE 

Caledonian  R.  Co.  v.  Cole 324 

Calhoun  v.  O'Neil 702 

California  etc.  R.  Co.  v.  Wight. . .  154 

Calkins  v.  Mathews 175 

Callahan  v.  Bean 175,  185 

Cafferta 68 

Shaw 702 

Warne 163,  164,  174 

Callanan  v.  Brown 267,  274 

Callendar  v.  Marsh 40 

Caloway  v.  Middletown 114 

Cameron  v.  Boyle 438 

Camp  V.  W.  U.'Tel.  Co 357,  358 

Campbell  v.  Chamberlain 86,  439 

Hancock 697 

Metcalf 443 

Woodworth 619 

Candee  v.  Deere 586 

P.  etc.  R.  Co 325 

W.   U.  Tel.  Co.  355, 

356,  357 

Cannell  v.  McLean 418 

Canning  v.    Williamstown  481, 

501,  535 

Cannon  v.  Folsom. 232,  233 

Cappen  v.  Braithwaite 88 

Capuro  V.  Builders'  Ins.  Co....  273 

Carder  v.  Fonhand 118 

Carhart  v.  Auburn  Gas  Co 604 

Carey  v.  Gruman 265,  266,  208 

Laer 155 

Cary  v.  Bright 629 

Hotaling 573 

Moore  568 

Garland  v.  New  Orleans 300 

Carlyon  v.  Lannon 630 

Caq^enter  v.  Atherton 2i)4 

Cummings 613 

Lockhart 147,  155 

Northfield  Bk 201 

Parker 475,  542 

Sheldon 546 

Stevenson 437,  441 

Wash.  Ins.  Co.459,  460 

Carson  v.  Marine  Ins.  Co 449 

Carter  v.  Baker 578 

Carter 430 

Fcland 027 

Stennel 275 

Thorn 436 

Tufts 109 

Carrv.  Moore. ..  .256,  265,  271,  275 

Carrier  v.  Carrier 247 

Came  v.  White 234 

Carroll  V.  M.  V.  R.  Co 520 

Carry  v.  Berkshire 491 

Carson  v.  Harris 320 

Casev.  Hall •■•  2>*3 

Marks 114,  117,  [M 

Wolcott 409 


CASES  CITED. 


XXIX 


PAGE 

Cash  V.  Kennion 207 

Cassell  V.  Herror 270 

Cassin  v.  Delanv 691 

Marshall 627 

Castle  V.  Pearce 393 

Castner  v.  Sliker 127  478 

Caswell  V.  Coare 265 

Wendell 36S 

Worth    159 

Gates  V.  Nichol 700 

Catlinv.  Hill 164 

Lyman 195 

Causae  v.  Andrews 472 

Cayzer  v.  Taylor 178 

Center  v.  Davis 428 

Spring 548 

Cent.  R.  Co.  v.  Copeland 325 

Chaise  v.  Blasdell 627 

Chamberlain  v.  Cobb 316 

Farr 282 

Parker 426 

Scott 303 

Shaw 656 

Champaign  Bank  v.  Smith.   ...  609 

Champlain  v.  Rowley 254 

Champion  v.  Vincent 66.  88,  680 

Chapin  v.  New  Orleans  R.  Co. . .     25 

Chapline  v.  Warner 258,  270 

Chapman  v.  Chi.  etc.  R.  Co....  660 

Dodd 685 

Holmes 372 

Ingram.. 232,  249,  278 

Pickersgill 543 

Robertson.... 206,  207 

Roth  well 178 

Thonibm-gh 614 

Wacaser 225 

Chappell  V.  Bull 374 

Charles  v.  Haskins 617 

Chase  V.Allen 139 

Monroe 612 

N.  y.  Cent.  R.  Co.  132, 

160,  600 

Chasemore  v.  Richards 36 

Ohatterton  v.  Fox. 61 

Cheddicke  v.  Marsh 138 

Chestei'man  v.  Lamb 258 

Chemvith  v.  Hicks 684,  685 

Chesley  v.  Chesley 77 

C.  &  N.  W.  R.  Co.  V.  .Jackson. .  694 

Sweeney .  174 

Swett.  ...  501 

Chi.  &  R.  L  R.  Co.  V.  McKean..  693 

C.  &  A.  R.  Co.  V.  Burke 341 

BauldaufF.  ...  340 

Fears 174 

Filmore 693 

Gregory 485 

^lurphy  .  .174,  177 

Roberts 92 

3 


PAGE 

C.  &  A.  R.  Co.  V.  Shannon 501 

C.  &  C.  R.  Co.  V.  Gregory 481 

Chicago  etc.   Dock  Co.  v.  Dun- 
lop 600 

Chicagoetc.R.  Co.  V.  Dewey 164 

Flagg ...  24 
Garvey. . .  690 
George  . .  158 
Gregoiy..  174 
Gretzner  .  172 
Harris  ...  164 
Jackson  . . 

179,  685 
Keefe  ....  177 
McAra...  692 
McKean..  108 

Otts 685 

Peacock..  686 
Pondrom.  164 
Shultz  ...  660 
Van  Patten  172 

Ward 536 

Wilson....  690 
Chicago  So.  Br.  Dock  Co.  v.  Dun- 
lap 600,  602 

Chicago  V.  Starr 185 

Chickering  v.  Robinson 616 

Child  V.  Burton 421 

Homer 113,  115,  552 

Childs  V.  Drake 24,  68,  514 

Chinery  v.  Vial 628,  633,  648 

Chipman  v.  Hibbard 594,  653 

Chisholm  v.  Arlington 201 

Choteaux  v.  Leach ...  325 

Choynsld  v.  Cohen 586 

Christman  v.  Davenport 698 

Christopher  v.  Austin 425 

Christy  v.  Murphy 584 

Chrysler  v.  Renois 204 

Churchil  v.  Watson 67.  597 

C.  Ins.  Co.  V.  Lawrence 458 

Cin.  &  Chic.  R.  Co.  v.  Rogers. . .     20 

Cin.  R.  Co.  V.  Ahr 605 

Cin.  Chro.  Co.  v.  W.  L.  Tr.  Co..  333 
City  Council  of  Montgomery. ...     37 

City  of  Chicago  v.  X»unn 692 

Langlass   86,  482 

Major 502 

_  Martin 86 

City  of  Cincinnati  v.  Rogers. . . .  134 
City  of  Decatur  v.  Fisher  ...  .86,  685 
City  of  Ijondon  v.  Van  acker. . . .  485 

City  of  Pontiac  v.  Carter 41 

City  of  Ripon  v.  BIttel 483 

City  V.  Ruby 486 

Clapp  V.  H.'R.  R.  Co 684,  685 

Walter 660 

Clare  v.  Maynard,  242,  256,  258,  265 

Clark  V.  Bai-nweU 320 

Bales 24,  66 


XXX 


CASES  CITED. 


PAGE 

Clark  V.  Boarclman 596 

Bush 151,  436 

Dearborn 123,  648 

Eighth  Av.  R.  Co 164 

Gilbert 289 

Hallock 615 

Hannibal  etc.  R.  Co... .     40 
Inhabitants  of  Lebanon.    46 

Kay 138,  153 

Kirwan 164 

Manchester 303 

Marsiglia 302 

McCloskey 228 

Miller 610,  611 

Moore 44 

Nevada  Land  &  M.  Co..  204 

Neufville 257,  268 

jSTewson 92 

PaiT 393 

Peckham 605 

Pinney 233,236,  633 

Rochester  etc.  R.  Co....  319 

Smith 254,  290,  610 

SAvift 372 

Uticaetc.  R.  Co 164 

Wilson 459 

Claycomb  v.  Munger 379,  395 

Clayards  v.  Dethick 180 

Clerk  V.  Udall 687 

Cleveland  v.  Grand  Trunk  R.  Co.. 

49,  529 

Cleveland  etc.  R.  Co.  v.  Keary 175 

Rowan.. 
182,  501 

Clifford  v.  Kimball 617 

Clinton  v.  Mercer 681 

Close  V.  Samm 601 

Closson  V.  Staples 544 

Clough  V.  Clough 256 

C.  Mut.  F.  Ins.  Co.  v.  Woodbury.  459 

Coates  V.  Coates 442 

Cochran  v.  Ammon 480 

Miller 24,  67,  91 

Toher 542 

Winbum 661 

Cock  V.  Taylor 418 

Cockbnrn  v.  Alexander 337 

Coffoon  V.  Brunton 585 

CoffGy  V.  Nat.  Bank 629 

Coffin  V.  Field 624 

Coffman  v.  Huck 385 

Williams 234 

Cohen  v.  Ward 228 

Coil  V.  Wallace 434 

Colburn  v.  Patmore 550 

Cole  V.  Goodwin 357 

Smith 289 

Tucker 106,  107 

Coleman  v.  Ballard. . .  ..381,  382,  385 
Collard  V.  South  E.  R.  Co..  .238,  323 


Collier  v.  Gamble 680 

Collins  V.  Albany  etc.  R.  Co 

691,  700 

Baumgartner 287,  304 

Bristol  R.  Co 325 

City  of  Council  Bluffs. 

86,  482 

Evans 566 

Sinclair  440,  442,  4M,  445 

Todd 126,  475 

Colt  v.  Holbrook 587 

Columbus  etc.  R.  Co.  v.  Arnold... 

177,  178 

Colvin  V.  McFadden 233 

Colwill  V.  Reeves 654 

Com.  Ins.  Co.  v.  Sennett 457 

Comins  v.  Little 375 

Commissioners  v.  Withers 40 

Commonwealth  v.  Allen 617 

Lahey   560 

Lighfoot  . . .,  611 

Meriam 560 

Compton  V.  Compton 153 

Comstock  V.  Hutchison 266,  268 

Conant  v.  Griffin 502,  504,  507 

Conard  v.  Pac.  Ins.  Co 620 

Condict  V.  G.  T.  R.  Co 326 

Condon  V.  Gt.  S.  W.  R.  Co.  504,  507 

Conger  v.  Chicago  R.  Co 320 

Conkey  v.  Mil.  R.  Co 326 

Conldin  v.  Thompson 484 

Conling  V.  Coxe 670 

Conor  V.  Dempsey, 256,  265 

Connv.  May 672 

Connelly  v.  McNeil 696 

Connor  v.  Henderson 277 

Noonan 550 

Converse  v.  Norwich  R.  Co 325 

Prettyman 251 

Conway  v.  Nicol 559,  560,  563 

Fhnt 660 

Cookv.  Beal 700 

Com.  of  Ham 242 

Champlin 173 

Clark 208  209 

Ellis 90,  106,107,  472 

Erie  R.  Co 338 

Grace  66 

Hai-tle 631,  648 

Litchfield 195 

Loomis  627,  629 

Munstone 255 

N.  Y.  C.  R.  Co 519 

R.  R.  Co 98 

Coolidge  V.  Brigham 261,  284 

Choate 620 

Coombs  V.  New  Bedford  etc.  Co. 

171,  177,  485 

Coon  V.  Greenman 303 

Syracuse  etc.   R.  Co...  177 


OASES  CITED. 


XXXI 


Cooper  V.  Cliittv 6-2( 

Mallius 93 

Newman 649 

Randall 604 

Utterback 68 

Waldron 54G 

Young..  322, 323,  328,  337 

Copeland  v.  Copeland 680 

Copelin  V.  P.  Ins.  Co 4-54 

Coppsr   Co.    V.   Copper    Mining 

Co 234,241,  278 

Corcoran  v.  Judson 442 

Corley  y.  Carter ^.^.  ■  149 

Cornell  v.  Jackson 370,  395 

Corning  v.  Corning 126,  473 

Cort  V.  Ambergate  R.  Co 282 

Coi-tes  V.  Davenport  City 669 

Convin  v.  Daly 584 

Wallace 298,  300 

Walton 25,  108,  107 

Cory  V.  B.  F.  &  M.  Ins.  Co 4-56 

Silcox 680 

Cory  V.  Thames  Iron  Works 238 

Coryel  v.  Coolbaugh. . .  .68,  111,  431 
Costigan    v.     Mohawk    etc.   R. 

Co 135,  338 

Cotheal  v.  Talmage 155 

Counter  v.  Couch 173 

County  of  Mahaska  v.  IngaUs. .  617 

Coursen  v.  Ely 164 

Courtney  v.  Carr 270 

Cowan  V.  Silliman 367 

Cov\xlore  v.  Martin 442 

Cowing  V.  Cowing 5-58 

Cowing  and  Molten.  562 

Cowles  V.  Kidder 173 

Cowley  V.  Davidson 329 

Cox  V.  C.  F.  &  M.  Ins.   Co 449 

Henry 393,  405 

Robuison 442 

Smith  194 

Vanderkleed 471,  483 

Walker 265 

Way 2-56 

Coxe  V.  England 252,  594,  6-53 

Coxe's  heirs  v.  Strode 385 

Coxon  V.  Ct.  W.  R.  Co 325,  360 

Coykendale  v.  Eaton 311 

Crabtree  v.  Kile 268 

Leavings 420 

Craft  V.  Allison 70 

Cragin  v.  N.  Y.  Cent.  R.  Co... 319  320 

Craig  V.  Kline 67 

Ward 566 

Cram  v.  Dresser 425 

Hadley 78,    88 

Crater  v.  Binninger. . .  .241,  272,  570 

Crawfoi'd  v.  Delaware 41 

Creed  v.  Fisher 685,  686 

Creevey  v.  Carr 113 


PAGE 

Criner  v.  Pike 121.  122,  624 

Crisdee  v.  Bolton 144 

Crist  V.  Armour 235 

Cristie  v.  Griggs :340 

Critchfield  v.  StaiT 396 

Cromie  v.  Ken.  &  Lou.  M.  Ins. 

Co 465 

Cronk  V.  Cole 568 

Crookshank  v.  Mallory 298 

Cross  V.  Brown 629 

Gutlu-ay 491 

U.S 671 

Willrins 697 

Crosby  V.  Wallrins .32 

Crosset  v.  No.  Mo.  R.  Co 690 

Crouch  V.  London  R.  Co 324 

Crow  V.  State 610 

Crumb  v.  Oaks 629 

Cude  v.  Redditt 114 

Cuddy  V.  Mayor 44 

Cuff  V.  Newark  etc.  R.  Co 521 

Cumberland  v.  Hoffman 445 

Cummings  v.  Thompson 571 

Curtis  V.  Brewer 154 

Groat    651,  6-52 

R.  &S.  R.  Co .341, 

481,  534,  535 

Ward 624 

Whipo 43 

Cusliings  V.  Drew 155 

Longfellow.... 594,  620 
Weils,  Fargo  &  Co. 

205,  322 

Cushman  v.  Haines 630 

Waddcll 126,  471 

Cutler,  adm'r,  v.  Powell 290 

Cutter  V.  Fanning 627,  630 

Cutting  V.  G.  T.  R.  Co 323 


D. 


Dabovich  v.  Emeric 233 

Daggett  V.  The  111.  Can.  R.  Co..  174 

Dakin  v.  WiUiams 139,  148,  149 

Dalby  v.  I.  &  L.  Ins.  Co 469 

R.  R.  Co 100 

Dale  V.  Shively 368,  372 

Daily  V.  Cowley 124 

Dailey  v .  Litchfield 138,  155 

Daly  V.  Benthusen 553 

Daley  v.  Norwich  etc.  R.  Co 

174.  185 

Railroad  Co 486 

DaUman  v.  Fitler 625 

Dalton  v.  Beers 68,    90 

Bowker 394,  395 

Pillaret 204 

S.  E.  R.  Co 505,  507 

Damon  v.  Moore 559 


XXXI 1 


CASES  CITED. 


PAGE 

Dana  v.  Fiedler. . .  .29,  200,  232,  282 

Dane  v.  Kenny 114 

Danforth  v.  Pratt 610 

Daniels  v.  Ward 153 

Danley  v.  Williams 303 

Darbey  v.  Cassaway 660 

Darlin<?  v.  Banks 552 

Davenport  v.  Wells 212,  233 

David  V.  Conrad 697 

So.  W.  R.  Co 503,  506 

Davidson  v.  Goodale 87 

Nichols 509 

Polyneux 685 

Davis  V.  Burlington  etc.  R.  Co. .  675 

Burrington 256,  298 

Burton 201 

Catbush 113 

Cook 544 

C.  H.  &  D.  R.  Co.. 323,  333 

Detroit  etc.  R.  Co 176 

Fish 1.32,  298 

Freeman 155 

Garrett 9 

Gillett 436 

Griffith 114 

Han-ison 209 

Lambertson 603 

Lewis 406 

Mann 134,  169 

Maxwell 254 

Nest 125 

N.  Y.  etc.  R.  Co 322 

Oswell 631,  655 

Penton 142 

Sabita 421 

Shields 233 

Slagel 432,  434 

Smith 385 

Talcott 287,  304 

Underwood 426 

Daws  V.  Hawkins 36 

Day  V.  Dox 232 

Halloway 651 

Leavenworth 43 

Martin 444 

Woodworth 26,  67,  579 

Dean  v.  Blackwell 66.     90 

Mason 576 

White  &  Haight 423 

DeBost  V.  Bushforth 125 

DeCamp  v.  R.  R.  Co 98 

Decker  v.  Biyant 540 

DeCrispigny  v.  Wcllcsbv 116 

Degg  V.  Midland  R.  Co.'. 175 

Deiiier  v.  Hold 4:55 

Delafield  v.  Union  FciTy  Co 164 

Delavei-que  v.  Norris 376 

Delogal  V.  Higby 547 

Nailor 207 

Delhi  V,  Youmans 37 


PAGE 

Delve  V.   Boardman 558 

Dennis  v.  Barber 655 

Cumins 155 

Larkin 46 

Demming  v.  G.  T.  R.  Co 323,  335 

Denslow  v.  Van  Horn. .  .24,  111, 

119,  432,  434 

Derby  v.  Gallup 619,  630 

Gray 629 

Johnson 303 

Dermot  v.  Jones 298 

DeRutte  v.  N.  Y.  A.  &  B.  Tel. 

Co 347,  348,  360,  362 

DeiTy  Bank  v.  Heath 442,  443 

Derwort  v.  Loonier 340.  684 

Detroit  Daily  Post  Co.  v.  McAr- 

ther 80.  100,  472 

Detroit  etc.  R.  Co.  v.  F.  &  M. 

Bank 825 

Detroit  etc.  R.  Co.  v.  Van  Stein- 
burgh 181 

Decosta  v.  Massachusetts 698 

Devaughn  v.  Heath 24.     67 

Devendorf  v.  Werf 680 

Devine  v.  Himer 396 

Devitt  V.  Pacific  R.  Co 16S 

Devore  v.  Sunderland 372 

Dewey  v.  Chicago  etc.  R.  Co.. . .  174 

DeWitt  V.  MoiTis 122,  661 

Dewing  v.  Sears 204 

Dexter  v.  Spear 3 

Dibble  v.  Moms.  .24.  66,  67,  90,  620 

Diblinv.  Murphy 696 

Dibold  V.  Minot 302 

Dickerson  v.  Cook 436 

Dickinson  v.  Barber.l  15. 116, 485,  552 

Worcester 37 

Dickson  v.  CaldweU 254,  290 

Deske 385 

Dillenbach  v.  Jerome 628 

Dillon  V.  Anderson 277 

Dimech  v.  Corlett 138 

Dimmick  v.  Lockwood 379 

Dingle  v.  Hare 256 

Dix  V.  Brown 173 

Dixon  V.Bell 489 

Caldwell 627 

Dixon  Crucible  Co.  v.  Guggen- 
heim    586 

Dockv.  Snapp 232 

Dobensplick  v.  Armel 697 

Dodd  v.  Holme 32 

MoiTis 560 

Dodge  V.  Burlington  etc.  R.  Co.  170 

Doe  V.  Davis 544 

Filliter 67 

Doggett  V.  Pratt 195 

Dolan  V.  Fagan 477 

Doll  V.  Lyon...*. 116 

Dolin  V.  Wilder 114 


CASES  CITED. 


XXXIU 


PAGE 

Don  V.  Fisher 276 

Donahue's  adm'r  v.  Ohio  etc.  L. 

&T.  Co .••-.••.••. 506 

Donaldson  v.  Mississippi  etc.  R. 
Co...  162,  183,  369,  491,  502, 

303,  506 

Donnell  v.  Jones 50,  543 

Sanford 482 

Donnelly  v.  Harris 67 

Donovan  v.   The  City  of  New- 
Orleans 41 

Doolev  V.  Smith 201 

Doolittle  V.  McColough 301 

Dougherty  v.  Shown 68 

Drew  V.  Sixth  Av.  R.  Co.. .  .491,  505 

Towle 385 

Dreyer  v.  Myng 671 

Driggs  V.  D wight 58,  423 

Drusee  v.  Wheeton 597 

Duberley  v.  Gunning 563 

Dubois  V.  Glaub 252 

DucWorth  V.  Johnson 501,  502 

Duffield  V.  Tobin 685 

DuFlow  V.  Powers 567 

Duffy  V.  Shockey 157 

Dufert  V.  Abadie 1:34,  549 

Duggins  V.  Watson 1-58 

Duke  of  Brunswick  v.  Slowman.  615 

Dull  V.  Kathman 278 

Dumars  v.  Miller 403 

Duncan  v.  Brown 114 

R.  Co 316 

S.  C.  R.  Co 53 

Duncombe  v.  Daniel 113,  5-52 

Dung  V.  Parker 567 

Dunlap  V.  Gregory 139 

Snyder 125 

Dunlop  V.  Higgins 238 

Dunning  v.  Humphrey 441 

Dunpe  V.  Gennin 428 

Dunson  v.  N.  Y.  Cent.  R.  Co. . .  320 

Dui-st  V.  Burton 249,  251,  256 

Swift 138 

Dustan  v.  Mc Andrew 280,  281 

Dutro  V.  Wilson 595 

Dutton  V.  Barnes 629 

Solomonson 282 

Dwinel  v.  Bro\vn 1-54 

Doorman  v.  Jenkins 310 

Dorchester  V.  Continental  Mills.  293 

Dorman  v.  Jacksonville 40,    41 

Dorsey  v.  Manlove. .  .24,  65,  67, 

88,  619 

Dorwin  v.  Potter 132 

Doster  v.  Brown 289 

Doty  V.  Rigour 696 

Douglass  V.  Kraft 633,  636 

Douglas  V.  Stevens 131 

Dowuer  v.  Black 243 

Smith 395 


PAGE 

Downing  v.  Butcher .546 

Doyle  V.  Dixon 691 

Drake  v.  Baker 416 

Hickley 421 

Hudson  etc.  R.  Co 39 

Mount 162 

Philadelphia  etc.  R.  Co.  164 

Draydon  v.  Knowles 432 

Dreher  v.  Fitchburgh 173,  310 

Dresser  Man.  Co.  v.  Waterson..  65.3 

Dye  V.  Mann 680 

Dyer  v.  Jones 29-3 

Wightman 670 

Dynes  v.  Hoover 609 


E 


Eagan  v.  Mut.  Ins.  Co 462 

Eagle  V.  Swayze 427 

Earl  V.  Sawyer 577,  579 

Spencer 442 

Earl  of  Leicester  v.  Walton 116 

East  Tenn.  R.  Co.  v.  Rogers 325 

Eaton  V.  Lyman 375,  398 

Melius 249 

Eckert  v.  Long  Island  R.  Co 172 

Eden  v.  Lexington  etc.  R.Co.491,  5.35 

Edgerton  v.  Payne 425 

Edclington  v.  ISfix 375 

Pickle 298 

Edmonson  v.  MaclieU 562,  557 

Yates 697 

Edon  V.  Lexington  R.  Co 491 

Edwards  v.  Bodine 442 

Collson 256 

Crock .563 

Edwards 444 

Pope 444 

Sherratt 320 

Williams 142 

Eichar  v.  Kistler '. .  559 

Ekins  V.  East  Ind.  Co 207 

Elam  V.  Badger 702 

Elcam  V.  Fawcett 563 

Elder  v.  Allison 566 

Trae 385 

Eldridge  v.  Adams 310 

Elfelt  V.  Smith 697 

Ellav.  Card 374 

Ellington  v.  ElUngton 118,  556 

King 277 

EUiott  V.  Fitchburg  R.  Co 601 

Pray 178 

Pybus 281 

Therlekeld 209 

Thompson 385 

Ellis  v.  Am.  Tel.  Co..  .347,  -357. 

358,  362 
Chinnock 258 


XXXIV 


CASES  CITED. 


PAGE 

Ellis  V.  HamHn 290 

Iowa  City 40 

L.  &S.  W.  R.  Co 518 

Wire 637 

Elmore  v.  N.  R.  Co 324 

Else  V.  Ferris 114 

Elsworth  V.  Cent.  R.  Co 684 

Elwood  V.  W.  U.  Tel.  Co. .  .361,  362 
Emblem  v.  Myers  ...  .54,  87,  91,  622 

Emmons  v.  Sheldon 699 

Engle  V.  Fitch  ■ 405 

Jones 90,  621 

Erie  Bank  v.  Smith 314,  315 

Erie  R.  Co.  v.  Ramsey 110 

ErUnger  v.  The  People 438 

Esmary  v.  Fanning 311 

Esmond  v.  Van  Benschoten 153 

Esterbrook  v.  Erie  R.  Co 600 

Evans  v.  Edmonds 566 

Edwards 566 

Harris 550 

Hettick 671 

Matson 22 

Evansville  etc.  R.  Co.  v.  Baum..     92 

Ewing  V.  Blomit 624,  637,  648 

Eysser  v.  Weissgerber 298 


F 


Faber  v.  D'Uttassey 587 

Failv.  McRee 286 

Fair  v.  L.  &  N.  W.  R.  Co 482 

Fairbanks  v.  Kerr 521 

Fairchild  v.  Cal.  Stage  Co 482 

Faith  V.  Bliss 228 

Fales  V.  McKeon 265,  275 

Falk  V.  Fletcher 630 

Falkean  v.  Fargo 339 

Faloy  V.  N.  Tr.  Co 357 

Farall  v.  Bamett 538 

Faris  v.  Lewis 258,  271,  569 

Farle  v.  Adams 194 

Farm.  Bank  v.  C.  Trans.  Co. .  • .  326 

Glenn 368,  378 

McKee 631,  639 

F.  &  M.  Bank  v.  C.  Tr.  Co 360 

Farmers'  Turnpike  Co.  v.  Cov- 
entry   610 

Farness  v.  Fergason 395 

Farrar  v.   Barton 624 

Christie 436 

U.  S 436,  617 

Farrow  v.  Wilson 289 

Farwell  v.  Price 650 

Wan  en  ...66,90,91, 

597,  621 

Faulks  v.  Sclway 119,  434 

Favor  v.  Philbrick 335 

Fawcett  v.  Woods 375,  381,  383 


PAGE 

Fay  V.  A.  Ins.  Co 455 

Parker 25,  76,80,  472 

Fayette  v.  Bush 41 

Faxon  v.  Mansfield 254,  291 

Feagin  v.  Beasley 259 

Felkner  v.  Scarbet 557 

Fellows  v.  Goodman 541 

Feltb ridge  v.  Wells 586 

Feltham  v.  England 177 

Felton  V.  Fuller 613 

Fent  V.  Toledo  etc.  R.  Co.. . .    9,  529 

Ferguson  v.  Davol  Mills 586 

Oliver 275 

Fernander  v.  Dunn 384,  393 

Ferris  v.  Comstock  ....  260,  264,  268 
Fero  V.  Buffalo  &  State  L.  R.  Co.,    49 

Fidler  v.  McKinley 432,  434 

Field  V.  Brackett 316 

City  of  Des  Moines 37 

Kinnear 248 

Runse 568 

N.  Y.  C.  R.  Co 48.  527 

Fielder  v.  N.  Y.  Ins.  Co 450 

StarMn 275 

Fifield  V.  Railroad 176,  179 

Filer  V.  N.  Y.  C.  R.  Co 482 

Filley  v.  Fasset 586 

Hudson  R.  R.  Co 508 

FHliter  v.  Phippard 484 

Finkv.  Potter 172 

Finlay  v.  Langston 673 

Finney  V.  C.  R.  &  R.  Co.,  92,  100,  481 

Finnity  v.  Sipper 552 

Fishv.  Cobb 311 

Fowler 154 

Gray 155 

Roseberg 686 

Fishback  v.  Williams 444 

Fishell  V.  Winans 256,  273 

Fisher  v.  Goebel 426 

Kyle 316 

Pattison 115 

Prince 630,  655 

Tice 551,  552 

Fisk  v.  Hicks 256,  258 

Tank 260 

Fitzgerald  v.  Boulst 698 

Caldwell 29,  193 

Fitzgibbon  v.  Brown 546,  548 

Fitzhugh  V.  Wyman 665 

Fitzjohn  v.  McKiddcr 50 

Fitzpatrick  v.  Bales  of  Cotton  . .  453 

Cottingham 153 

Flagg  v.  Worcester 37 

Flanagan  v.  People 526 

Flanders  v.  Meath 700 

Flash  V.  N.  0.  etc.  R.  Co 339 

Fleet  V.  llollonkemp 54 

Flemington  v.  Slnithers 481 

Fletcher  v.  Burrows 114,  551 


CASES  CITED. 


XXXV 


Fletcher  v.  Button 385,  403,  40o 

Dyclie 14u 

Randell 559,  560 

Tayleur    242 

Fleytas  v.  Ponchartraiu  R.  Co. . .  159 

Flick  V.  Wetherbee 264 

Flint  V.  Clark S-"*! 

Steadman 374,  393 

Flogg  V.  R.  Co 472 

Floyd  V.  State 539 

Flower  v.  Adam 132 

Flureau  v.  Thornhill. . .  .57,  400, 

401,  408,  409 
Foley  V.  McKe2:an.  .21,  58,  137, 

138,  146,  152,  406,  4-37 

Follett  V.  Hunt 286 

Forbes  v.  Murray 206 

Ford  V.  Fitchburg-li  R.  Co 1(9 

Monroe.... 491,  508 

Vv^ard 684,  702 

Foote  V  Burnett 372,  375 

Foot  V.  Nichols 68 

Forsythe  v.  Hooper 177 

Forsyth  v.  Palmer 615 

Wells..  125,  601,631, 

639,  653 

Fort  V.  Un.  Pac.  R.  Co 171 

Foster  v.  Eq.  M.  Ins.  Co 450,  460 

Foster 562 

Nichols 24 

Rogers  .  .256,  259,  265,  275 

Thompson 368 

Van  Norman 697 

Foshay  v.  Ferguson 544,  548 

Fountain  v.  West 551,  553 

Fowler  v.  Dorlon 173 

Gilman 629,648,  656 

Rathbones 453 

Waller 304 

Fox  V.  Glastinburgh 174 

Harding 242 

Sackett 176 

Stevens 25 

Webster 573 

Foxworth  V.  Bullock 420 

Foy  V.  Dabncy 303 

Troy  etc.  R.  Co o2-j 

Fraloff  V.  N.  y.  C.  R.  Co 329 

France  v.  Gaudet 647 

Franchot  v.  Leach 419 

Frances  v.  Hastleman 195 

Frank  v.  Cresswell 372 

Pelter 341 

Franklin  v.  Neale 315 

S.E.  R.  Co 501,  505 

Frankling  v.  Long 270 

Frantz  v.  Hilterbrand 692 

Eraser  v.  Berkley 4(4 

Fraulin,  adm'r,  v.  S.  E.  R.  Co. .  507 
Frazer  v.  Berkley 22,  113,  125 


PAGE 

Frazer  v.  Gregg 286 

Little 151 

Frazier  v.  Fredericks 659 

Penn.  R.  Co 176 

Tubb 421 

Freidenheit  v.  Edmonson 25 

WilUamson 66 

Freize  v.  Thompson 681 

Freeland  v.  Muscatine 596,  669 

Freeman  v.  Chute 277 

Harwood 636 

Rosher 70 

The  People 436,  438 

Tinsley....ll3,  115,  551 
Fremantle  v.  The  London  &  N. 

W.  R.  Co 49 

French  v.  Bent 681 

Grindle 209 

Kenedy 194 

Snyder 611 

Vining 131,  262 

Frenzel  v.  Miller 566 

Frmk  v.  Coe 67 

Justh -. 117 

Schroyer 482,  535 

Tatman 232,  256 

Frost  V.  Knight 432 

Frotliingham  v.  Morse 629,  640 

Fry  V.  Bennett 549,  550,  554 

Fuller  V.  Brown 289 

Bowker 539 

Edings 669 

Fenner 549 

Little 303 

Fullman  v.  Stearns 679 

Fulton  V.  Dean 114 

Staats 542 

Fulwiderv.  Wilford 563 

Funk  V.  Caswell 375 

Dillon 619 

Furry  v.  Stone 698 

Fyree  v.  King 404 


G. 


Gadson  v.  Bank 443 

Gage  V.  Parker 568 

Gahagan  V.  Boston  &  L.  R..159,  183 

Gainstbrd  v.  Can-oil 234 

Gale  V.  Dean 418 

Galena  D.  &  M.  Pack.  Co.  v.  Van- 

dergrift 163,  173 

Gales  V.  Bliss 278 

Reynolds 396,  421 

Gallagher  v.   Pifer 177 

Gammon  v.  Hov.^e liJ4 

Gannon  v.  Hargadon 37 

Granson  v.  Madigan 279 

Garber  v.  Morrison 697 


XXXVl 


CASES  CITED. 


PAGE 

Gardner  v.  Bain 540 

Field 620 

Madinea 560 

NHes 379 

Garfield  v.  Williams 372 

Garland  V.  Wlioledam 24,  107 

Garlinghouse  v.  Jacobs 32 

Garrett  v.   Log-an 442,  443 

M.  ctL.  R 159 

L>nicli 420 

Smith 224 

AVood 661 

Garretson  v.  Brown 620 

Garretty  v.  Brazell 684 

Garsed  v.  Turner 423 

Gates  V.  Meredith 552 

Reynolds 421,  570 

Gaugh  V.  Farr 430 

Gault  V.  Goldwait 445 

Garcd  v.  Martin ...     36 

Gavin  v.  Blocker 539 

Gay  V.  Crosby 153 

Franklin 43 

Raines 697 

Winter 159 

Geddes  v.  Met.  R.  Co 341 

Gee  V.  Lancashire  etc.  R.  Co 238 

Gellett  V.  Mason 36 

Genay  v.  Norris 67 

Gen.  M.  Ins.  Co.  v.  Sherwood  . .  456 
George  v.  Cahawba  etc.  R.  Co. .  302 

Concord 201 

Talman 421 

Georgia  R.  Co.  v.  Wynn 507 

Gerrish  v.  Newmarket  Man.  Co. .  600 

Getty  V.  Rountree 262 

Gibbs  V.  Chase 121 

Gibbons  v.  0"Connell 445 

United  States 278 

Gibson  v.  Marquir 273 

Gilbert  v.  Bertenshaw 685 

Kenedy 249,  594 

Gilbertson  v.  Richardson 620 

Gile  V.  Stevens 600 

Gilbreath  v.  Allen 550 

Giles  v.  Dugrc 375 

Gilrath  v.  Allen 25,  66,    67 

Gillard  v.  S.  &  Y.  R.  Co 501 

Gillett  V.  West.  R.  Co 537 

Gillott  V.  Esterbrook 585 

Kettle 586 

GiUman  v.  Hall 293 

Gdson  V.  Wood 619 

Gist  V.  McGuire 443 

Glacius  V.  Black  254 

Glazebrook  v.  Woodrow 419 

Glinister  v.  Audley 372 

Godard  v.  Grand  Trunk  etc.  R. 

Co 68,  93,99.  103 

Godison  v.  Nuun 419 


PAGE 

Godwin  v.  Holbrook 247 

McGehee  194 

'Goetz  v.  Ambs 68,  685 

Goldsbro  v.  Baker 129 

Goldsmith  v.  Pickard 543 

Goller  V.  Fett 601 

Goodale  v.  Tuttle 37 

Goodall  V.  Thurman. .  .430,  687,  434 

Goodard  v.  Barnard 305 

Goodell  V.  Thurman 68 

Goodenow  v.  Snyder 655 

Goodloe  v.  Rogers 45 

Goodno  V.  Oshkosh 691 

Goodpasterv.  Porter  &  Courtney.  419 

Goodrich  v.  Foster 611 

Warner *.....  546 

Goodsell  V.  Hartf.  etc.  R.  Co 514 

Goodwin  V.  Francis 416 

Gordon  v.  Brewster 303 

Jenny 613,  659,  662 

Jones 26,  63 

Mass.  Ins.  Co 458 

Norris 270,  280 

Gore  V.  Brazier 385 

Chadwick 68 

Gormon  v.  Pac.  R.  Co 674 

Goszler  v.  Georgetown 41 

Goucher  v.  Cormack 595 

Gould  V.  Bennett 544 

Christianson...26,  108,  482 

Gardner 129 

Wead 114,  115 

Governor  v.  Raley 618 

Gower  v.  Carter.  .21,  137,   150, 

153,  435 

Garish 138 

Saltmarsh 138 

Gowing  V.  Gowgill 617 

Grable  v.  Margi-ave 24 

Grady  v.  Wolsner 603 

Graham  v.  Graham 286 

Jackson 282 

Keys 698 

]\Iaitland  249 

Marshal 201 

Slate 5S7 

W.  U.  Tel.  Co 355 

Grainger  v.  Martin 450 

Grant  v.  Hcaley 207,  212 

Tallman 375 

Townisend 386 

Wiley 119,  431 

Gray  v.  Bean 562 

Briscoe 194 

Darland  556 

Kimbal    609 

James 671 

Portland  Bank 629 

Stevens..^ 620 

Veirs 442,  445 


CASES  CITED. 


XXX  vu 


PAGE 

Gray  v.  Waterman 625 

Graynorv.  Old  Colony  R.  Co.180,  183 

Gray's  Gold 322 

Graves  v.  Hartford  etc.  S.  S.  Co.  338 

Otis 40 

Great  N.  R.  v.  Harrison 159 

Great  Western  R.  Co.  v.  Miller, 

92,  100 
Great  Western  R.  Co.  v.  Red- 

mayne 238,  240 

GregoiT  V.  Bro^vn 608 

McDowell 248 

Greggs  V.  Flieckstien 520 

Green  v.  Biddle 393 

Craig.66,67,  68,  90,91,  621 

Farmer 648,  656 

Hud.  R.  R.  Co 502 

ilann 426 

Price 142 

Reeding 40 

Southern  Exp.  Co.. 685,  686 

Spencer 431,  432 

Tallman 379 

Green,  etc.,  R.  Co.  v.  Partton ...     67 

Greenby  v.  Wilcocks 372 

Greenfield  Bank  v.  Leavitt.  .624, 

628,  629,  648 

Greenland  v.  Chaplin 45,  529 

Greenleaf'v.  Dubuque  etc.  R.  Co.  176 
111.  Cent.  R.  Co.  176, 

180,  533 

McColly 77 

Greening  v.  Wilkinson. 630,  633,  648 
Greenville  etc.  R.  Co.  v.  Partlow, 

26,    88 

Greenwade  v.  Mills 545,  547 

Greenway  v.  Gaither 420 

Greer  v.  Mayor  of  N.  Y 595 

Powell 630 

Greyon  v.  Sen-ell 578 

Grider  v.  Clopton 421 

Gridley  v.  Tucker 385 

Griffin  V.  Chubb 544 

Colver 240,  356 

Creditors 153 

Reynolds 395 

Weatherspoon 697 

•  Griffiths  V.  Gidlow 159,  176 

Grisrsrs  V.  Fleckenstien.162,  172,  173 

"  Foot 40 

Grigsby  v.  Clear  Lake  Water  Co .  60o 

Grimes'  v.  Martin 421 

Grinnell  v.  Wells 556 

Giippen  V.  N.  Y.  Cent.  R.  Co., 

158,  159 

Grist  V.  Hodges 384 

Griswold  V.  Sabin 406 

Grizzle  V.  Frost 178,  48o 

Groesbeck  v.  Lord 427 

Gross  V.  Kierski 28o 


FA6E 

Groverv.  DiU 559 

Grund  v.  Pendergast 330,  331 

Guard  v.  Risk 24,  67,  653 

Guengerech  v.  Smith.  .128,  478, 

479,  554 

Guille  V.  Swan 51 

Guiteman  v.  Davis 222 

Guthrie  v.  Blowers 472 

CoUin 206 

Pugsley 369,  395 

Guy  v.  Gregory 553 

Gwin  V.  Breedlove 200 

H 

Hacker  v.  Blake 367 

Hackett  v,  B.  C.  R.  &  M.  R.  Co.,  332 
Middlesex  Man.  Co.,  178 
Hadley  v.  Baxendale. . .  .10,  287, 
304,  332,  355,  405,  408,  409, 

423,  424,  518,  570 
Hagan  v.  Providence  etc.  R.  Co., 

70,  92,  100,  108 

Hagar  v.  N.  E.  Ins.  Co 454 

Hagedom  v.  Whitniore 455 

Hahn V.  Cummings,  271, 413, 421,  570 

Sweazea 699 

Haines  v.  Leland 552 

Hair  V.  Little 66,  619 

Haldeman  v.  Jenkins 139,  153 

Hale  V.  New  Orleans 381,  405 

RawHs 175 

Hales  V.  L.  &  N.  W.  R.  Co.,  238,  336 

Haley  v.  Chic.  etc.  R.  Co 162 

Dorch.  Mu.  F.  Ins.  Co.,  466 

Hall  v.  Bark  Emily  Bannmg 701 

Cowley 155 

Dean.. 374 

Delapane 361 

Jonathan 385 

Pierce 232 

Suydam 544,  547 

WHes 575 

York     405 

Hallam  v.  Todhunter,  270,  395, 

421,  571 

Hallett  V.  Novion 121 

Halloway  v.  Griffeth 432 

Halsey  v.  Hurd 232 

Hamaker  v.  Schroers 138,  139 

Hambyv.  Hulst 697 

Hamer  v.  Hathaway 633,  636 

Hamilton  v.  Ganvard 233,  234 

March 610 

McPherson....l32,  292 

Overton 155 

Steel 445 

T.  A.  R.  Co 342 

WHson 372 


XXXVlll 


CASES  CITED. 


PAGE 

Hamlin  v.  Cn-t.  N.  R.  Co. . .  .238,  343 

Spaulcling 541 

Haminer  v.  Breirlenbach  . .  138,  155 

Griffith 610 

Hammond  v.  Hannin 414 

Russ 592 

Hampton  v.  Wilson 114 

Hand  v.  Armstrong 194 

Hanley  v.  Chambers 403 

Hanna  v.  Cummings 396 

Barter 248 

Hanover  R.  Co.  v.  Coyle,  166, 483,  535 

Hansford  v.  Payne 511 

Hanson  v.  Buckner -385 

Hampton 254 

Harbison  v.  Shook 553 

Hard  v.  Vermont  etc.  R.  Co 

175,  176,  177 

Harder  v.  Harder 606 

Hardm  v.  Larkin 393 

Harding  v.  Cowing 204 

Townshend 515,  534 

Hardy  v.  Howard 148 

Harker  v.  Dement 595 

Harlow  v.  Thomas 374,  375 

Harmon  v.  Wiley 121 

Harper  v.  Davis  698 

Ind.  etc.  R.  Co 176 

Walker 558 

Harrell  v.  Durance 695 

Harrington  v.  Dall 692 

Harris  v.  Coster -340 

Elcbed 124 

Harris 416 

Northern  etc.  R.  Co. . .  175 

Panama  R.  Co 327 

Protec.  Ins.  Co 463 

Rathbum 254 

Harrison  v.  Allen 697 

Berkley 133 

Harrison 24-3,  478 

Swift 70,  472 

Wright 437 

Hart  v.  West.  R.  Co. .  .  .49,  529,  531 

Hartfield  v.  Roper 486 

Hartley  v.  Herring 550 

Harvey  v.  Rickett 692 

City  of  Rochester 86 

Hasbrouck  v.  Tappen 148,  155 

Haskell  v.  Hunter 2-33 

]\IcHeniy 282 

Haskford  v.  New  York  etc.  R.  Co.  188 

Haskens  v.  Lumsden 114,  115 

Hassa  v.  Junger 132,  536 

Hassell  v.  Nutt 303 

Hastings  v.  .Johnson 697 

Hatfield  v.  Cent.  R.  Co 604 

Roper 164,  185 

Towsley 616 

Haumer  v.  Wilsey 624 


PAGE 

Havemeyer  v.  Cunningham 2-34 

Haven  v.  Wakefield 304 

Havers  v.  Erie  etc.  R.  Co 166 

Haviland  v.  Parker 620 

Hay  V.  Gronoble 242 

Haycraft  v.  Creasy 619 

Hayden  v.  Anderson 665 

Bartlett 627,  629 

Man.  Co 176 

Sample 441 

Hayes  v.  Askew 109 

Porter 610 

Riddle 656 

Haynes  v.  Sinclair 50 

Stevens 378 

Hayward  v.  Leonard 291,  301 

L.  &  L.  F.  Ins.  Co.,    46 

Haywood  v.  Foster 115,  552 

Haywood 211 

Hawke  v.  Ridgeway 24 

Hawkins  v.  Case 135 

RHey 66 

Hazleton  Coal  Co.  v.  Buck  Mount. 

Coal  Co 252 

Heagy  v.  Hill 630 

Heastings  v.  McGee 565 

Heath  v.  Lent 439 

Heavilen  v.  Kramer 134 

Hedgepath  v.  Robertson 88 

Heebner  v.  Eagle  Ins.  Co 450 

Hegan  v.  Eighth  Avenue  etc.  R. 

Co 181 

Heil  V.  Glanding 91,  109 

Hein  v.  Wolf 303 

Hekn  v.  McCaughan,  60,  67,  68,  343 

Helm  V.  Wilson 254 

Hellman  v.  Halladay 322 

Hence  v.  Cayuga  etc.  R.  Co 160 

Henderson  v.  Maid  of  Orleans. .  328 
W.M.&F.Ins.Co.  456 

Hendricks  v.  Decker  630 

Hendrickson  v.  Kingsburv  . .  .24, 

73,  106,  1(37,  471,  482 
Henry  v.  Pittsburgh  etc.  R.  Co..     40 

Henson  v.  Hampton 290 

Hepburn  v.  Griswold 201 

Herbert  v.  Easton 228 

Herdic  v.  Young 664 

Hemdeu  v.  Dalton 1:34 

Harrison 369 

Hertzogg  V.  Hertzogg 403 

Hewey  v.  Nourse   49 

Hewctt  V.  Miller 232,  278 

Prime 558 

Hewlett  V.  Cnichley 685 

Hibbai-d  v.  Stewart 121 

W.  U.  Tel.  Co 3-59 

Hickey  v.  Boston  etc.  R.  Co 175 

Hicks  V.  Foster.' 549 

Newport  etc.  R.  Co....  517 


CASES  CITED. 


XXXIX 


PAGE 

Hickslier  v.  McCrea 338 

Higginson  v.  Martin 609 

Hildebranfc  v.  Brown 627 

HiU  V.  Balls    271 

Golden 395 

Loomis 615 

Maupin 431 

New  Orleans  etc.  R.  Co.. 

70,  92 

Opelousas  etc.  R.  Co 159 

Smith 234,  278 

Warren 163 

Hillman  v.  Bainback 597 

Hilton  V.  Woods 602 

Hinckley  v.  Beck  with 241,  242 

Hiner  v.  Richter 403,  570 

Hinman  v.  Borden 612 

Chicago  etc.  R.  Co. . .  674 

Hirsch  v.  Patterson 693 

Quaker  City 338 

Hise  V.  Foster 148,  150 

Hisler  v.  Carr 636 

Hitchcock  V.  Hunt 260 

North 545 

Hoadley  v.  Watson 68,  107 

Hoag  V.  McGinnis 155 

Hoard  v.  Hall 375 

Hobbs  V.  Francais 584,  586 

Hobert  v.  Kiniberly 43 

Hoby  V.  Built 618 

Hoctv.  Reed 114 

Hodges  V.  King 154 

HodsoU  V.  Stallebrass 462 

Hodson  V.  Willdns 610 

Hoffman  v.  Mt.  Ins.  Co 457 

St.  Louis 40 

Hogan  V.  Kellum 611 

Riley 681 

Hogg  V.  Emerson 577 

Hohannan  v.  Hammond 320 

Holbrook  v.  U.  &  S.  R.  Co 482 

Wright 311 

Holcomb  V.  McLean 584 

Holland  V.  Brooks 683 

Fox 580 

HoUenbeck  v.  Berkshire  R.  Co. .  510 

Hollis  V.  Wells 560 

Holly  V.  Boston  G.  L.  Co 173 

Holmes  v.  Clark  _. 270,  421 

Godwin 664 

Holmes 150 

Stummel 286 

Watson 592 

Holt  V.  Given 203 

Holyoke  v.  Grand  T.  R.  Co. .  78, 

91,  482,  483,  534,  535 

Home  Ins.  Co.  v.  Sherman 425 

Thompson 462 

W.  Trans.  Co.,  332 
Homer  v.  Hunt 195 


PAGE 

Homer  v.  Marshal 485 

Honigsberger  v.  Second  Avenue 

R.  Co 187 

Hood  V.  N.  Y.  &  N.  H.  R.  Co. . . 

324,  360 

Townsend 228 

Hook  V.  Stovall 268 

Hooker  v.  Newton 26,    68 

Hooksettv.  Amoskeag  Man.  Co.,  173 

Concord  R.  Co 49 

Hoot  V.  Spade 395 

Hopkins  v.  Atlantic  etc.  R.  Co., 

66,  68,  78,  93,  95,  535 

Crittenden 194 

Grazebrook,404,408,  409 

Lea 58 

Westcott 339 

Yowell 386 

Hopple  V.  Higby 615,  619 

Hord  V.  Chandler 62 

Trimbale 441 

Home  V.  Batchelder 256 

Mid.  R.  Co 240 

Homer  v.  Flintoff 142 

Horr  V.  Parks 188 

Horton  v.  Ipswich 173 

Hoskin  v.  Phillips 592 

Duperoy 282 

Hosley  v.  Brooks 67,  553,  554 

Hosmer  v.  True 138 

Wilson 302 

Hostetter  v.  Vowmkle 586 

Hotchkiss  V.  Jones 665 

Lathrop 114,  115 

Oliphant 114,  552 

Hough  V.  People's  Ins.  Co..  460,  463 

Houghton  V.  Bankhard 603 

Carpenter 265 

Rock 659 

Houlten  v.  Smith 608 

House  V.  House 385 

Houston  V.  Noble 43 

Hovey  v.  Mayo 40 

How  V.  Perry 115 

Howard  v.  Barnard 702 

Beatty 225 

Bowers 155 

Miner 247 

Howard  Ins.  Co.  v.  Scribner 464 

Howe  v.  Mason 616 

Oswego  R.  Co 332 

Howel  V.  Graves 639 

Howell  v.  Young 618 

Howes  V.  Woolcock 208 

Howland  v.  Vincent 39 

Hoxie  V.  Lincoln 293 

Hoyt  V.  Reed 699 

Hubbard  v.  Belden 289,  293 

Norton 374,  377 

Hubbel  V.  U.  S 580 


xlii 


CASES  CITED. 


PAGE 

Kenayde  v.  Pacific  etc.  R.  Co 173 

Kendall  v.  Stone 25,     65 

Kendrick  Cypert 545 

McCrary 557 

Kennedy  v.  Hammond 444,  445 

Strong 627 

Whitewell 629 

Kenney  v.  Hosea 550 

Kent  V.  Bonzey 552 

Ginter 233,  245 

H.  R.  R.  Co 323 

Kentucky  etc.  R.  Co.  v.  Dills. 24,  108 

Kepp  V.  Merwin 426 

Keplinger  v.  Sherwick 558 

Kerby  v.  Denby 615 

Richardson 395 

Kernochan  v.  N.  Y.  B.  Ins.  Co., 

459,  460 

Kems  V.  Snowden 167 

Kerst  V.  Gender 419 

Kerr  v.  Forgue 174,  187 

Pa.  R.  Co 529 

Kerwhacker  v.  The  Cleveland  etc. 

R.  Co 163 

Ketchum  v.  Am.  Ex.  Co 339 

Dew 284 

Keys  V.  Devlin 125,  473,  482 

Keyesv.  W.  Vt.  S.  Co 427 

Kidv.  Mitchel 637 

Kier  v.  Peterson 601,  653 

Kilgore  v.  Powers 194 

Kindred  V.  Stitt. 544 

Kimmons  V.  Hmiter  &Lockhart.  421 

King  V.  Bemond 698 

Gilson 370 

Jones 372 

Lyle 395 

Orser 628,  630 

Pyle 413 

Root 25 

St.  Mut.  Ins.  Co.. 459,  460 

Shepherd 322 

Woodbiidge 32-3,  337 

Kingdom  v.  Cox 254,  290 

Kingdon  v.  Nottle 372 

Kingsland  v.  Clark 670 

Kinny  v.  Crocker 483 

Kimpton  v.  Bronson 201 

Rosevelt 201 

Kinsey  v.  Wallace 698 

Kirkpatrick  v.  Downing 407 

Kirkscy  v.  Jones 439 

Kirtland  v.  Leaiy : 323 

Kitchen  v.  Branch  Bk.  Mobile. .  194 
Klein  v.  Thompson. . .  .472,  475,  478 
Kline  v.  Cent.  Pacific  R.  Co. . . .  172 
Klopferv.  Bromme.107, 119,  557,  559 

Kluniph  V.  Dimn 553 

Klumayde  v.  Pac.  R.  Co 519 

Knapp  V.  Maltby 155 


PAGE 

Kneeas  v.  Schuylkill  Bank 577 

Kniffen  v.  McConnell.431,  434, 

478,  563 

Knight  V.  Dunlop 254 

Egerton 619 

Faith 450 

Foster 07,  78,  88  553 

Ponchartrain  R 159 

Wilcox 50,  5.57 

Knowles  v.  Nunns 262,  271,  559 

Knox  V.  Lee 201 

New  York 602 

Knukle  v.  State 478 

Kolb  v.  Bankhead 67 

Koeltz  V.  Bleckman 256,  699 

Koester  v.  Ottumwa  City 684 

Kountz  V.  Brown 66,     67 

Kreigv.  Well 185 

Kresler  v.  Smith 503 

Kroener  v.  Calhoun 201 

Krom  V.  Levy 241 

Kroom  v.  Schoonmacker 485 

Kupfer  V.  Bank  of  Galena 204 

K.  P.  R.  Co.  V.  Pointer 482 


Lacy  V.  Straughan 256,  265,  275 

Marion 368 

Mitchell 548 

Lacour  v.  New  York 596 

Ladd  V.  Lord 570 

Lafayette  etc.  R.  Co.  v.  Huffman  185 

Laird  v.  Pirn 418 

Lakeman  v.  Grinnell 326 

Lamar  Ins.  Co.   v.   McGlashen, 

451,  458 

Lamar  v.  Thornton 228 

Lamb  v.  Brolaski 256,  298,  300 

Camden  etc.  R.  Co 339 

Lamonda  v.  Duval. 628 

Lampman  v.  Cochran 155 

Lampton  v.  Usher 444 

Lancashire  etc.  R.  Co.  v.  Gee. . .  240 

Lamder  v.  Miles 542 

Landsberger  v.  M.  Tel.  Co.  .348.  356 

Lane  v.  Cole 671 

Crombie 183 

Gluckauf. 204 

Lantz 275 

Latiner 277 

Wilcox 69 

Lanebar  v.  St.  Louis 34 

Lang  V.  Hopkins 685,  686 

Langhoff  v.  Milwaukee  etc.  R. 

Co 165,  180 

Langridge  v.  Levy 56 

Langworthy  v.  McKelvey 442 


CASES  CITED. 


xliii 


Lanin^  v.  X.  T.  Cent.  R.  Co  — 

176,  178,  179 

Lansing  v.  Yates 608 

Lantiy  v.  Parks 254 

Lanussee  v.  Baker 207 

Laplace  v.  Aupaix 630 

Larkin  v.  Saginaw •_•     34 

Lamed  v.  Buifington.  ..114,  115, 

550,  552 

Lasala  v.  Holbrook 32 

Latham  v.  Brown 621,  656 

Lattin  v.  Davis 251 

Lauback  v.  Lauback 636 

Laubenheimer  v.  Mann 155 

Lauer  v.  Schatenburg 432 

Laughlin  v.  Harvey 201 

Laurent  v.  Chapman 458 

C.  Ins.  Co 457 

Vaughn 322,  335 

Lawv.  LL.  P.  Co 469 

Lawless  v.  Collier 370,  375 

Lawrence  v.  Chase 61 

Cook 430 

Fox 361 

Gt.  No.  R.  Co 597 

Hagerman 439 

H.  R.Co 482 

Laws  V.  Bycroft 225 

Learv  v.  Laftin 148 

Leather  Cloth  Co.  v.  Heichfield,  587 

Leavenworth  v.  Parker 256 

Leavenworth  etc.  R.  Co.  v.  Rice,     24 

Leavitt  v.  Dabney 442 

Lebanthwait  v.  Halsey 193 

Ledyard  v.  .Jones 611 

Lee  V.  Ashbrook 256 

Dean 413 

How.  Ins.  Co 460 

AYilcox 207 

Woolsey 474,  475 

Leffinwell  v.  ElUott 378,  379 

Leggett  V.  Baker 124 

Lehman  v.  Brooklyn 185,  502 

Leighton  v.  Kendy 69 

Wales 145 

Leinpemone  v.  Moore 602 

Leland  v.  Stone 44,  154 

Lemon  v.  Clucago  ete.  R.  Co. . . .  675 

LeMott  v.  Archer 698 

Lewes  v.  Ridge 372 

Lendrick  v.  Huntington 194 

Leonard  v.  Allen 551 

Dunton 317 

K.  Y.  TeL  Co 349 

Phoe.  Ins.  Co 461 

Speidel 435 

Lepper  v.  Xultman 571 

Lessee  v.  Huntington 577 

Lester  v.  French 697 

Letton  V.  Young 685 


PAGE 

Levi  V.  Brannan 692 

Lewis  V.  Baltimore  etc.  R.  Co. . .  181 

Chapman 553,  554 

Cook 697 

Eagle  etc 507 

Greider 280 

Harris 375 

Ludwick 319 

N.  Y.  Cent.  R.  Co 201 

Niles 114 

Peake 261 

Ship  Success 328 

Lick  V.  Faukner 201 

Liddy  v.  St.  Louis  R.  Co 169 

Lighter  v.  Menzel 154 

Likes  V.  Baer,  256,  271,  396,  421,  570 

LiUard  v.  Whitaker 629,  630 

Lincoln  v.  Buckmaster 518 

Saratoga  &  S.  R.  Co. 

50,  480,  481 

Linden  v.  Hooper 638 

Lindsay  v.  Anesly 138 

Lindsey  v.  Danville 175 

Linford  v.  Fitzra 616 

Linningdale  v.  Livingston 301 

Linsley  v.  Bushnell 24,  66,  5-34 

Lipe  v.  Eisenlerd 25,  557 

Liscomb  v.  B.  M.  Ins.  Co 457 

Lisk  v.  Mathias 129 

Little  V.  Tingle  ...  .24,  471,  619,  621 

Littlefield  v.  Norwich 684 

Littlehale  v.  Dix 128,  481 

Little  Miami  R.  Co.  v.  Stevens  . .  176 
Whitacre,  669 

Living  V.  Miller 29 

Livingston  v.  McDonald 37 

Woodworth 576 

Lloyd  v.  Godwin 656 

Lobdell  v.  Baker 210 

Stowell 635 

Locke  V.  Furze 402,  405 

St.  Paul  ete.  R.  Co. . . .  173 

Taylor 406 

Lockiidge  v.  Foster 566 

Lockwood  V.  Sangamo  Ins.  Co.,  450 

Sturdevant 370 

Lodge  V.  Spooner 207 

Lofton  V.  Yogles 174 

Logan  V.  Moulder 372,  385,  386 

Logansport  v.  Wright 34 

Loker  v.  Damon 132 

Longv.  Eakle 114 

Lamkin 695 

Rodgers 546 

Towle 139 

Loomis  V.  Shaw 454 

Loonan  v.  Brackbury 176 

London  R.  Co.  v.  Glyn 460 

Lord  V.  Geddis 146,  153 

Lord  Cawdor  v.  Lewis 393 


xliv 


CASES  CITED. 


PAGE 

Lord  EUenborougli  in  Baker  v. 

Bolton 491 

Loring  v.  Gurney 282 

Loud  V.  Merill 208 

Louisville  &N.R.Co.v.Burke.  ..  510 
Campbell,  32." 
Cavens...  177 

Lounsbery  v.  Snyder 42-5 

Lovejoy  v.  Roberts 422 

Lowe  V.  Harrison 671 

Peers 145 

Sinklear 300 

Loyd  V.  Hicks 695 

Lucas  V.  Pickel 194 

Lucena  v.  Ci-awford 448 

Luckey  v.  Roberts 629 

Ludlow  V.  Village  of  Yonkers  . .  596 

Ludmcb  v.  Hutzinger 194 

Luk-in  V.  Godsall 592 

Luthv.  Pope 545 

Luther  v.  Winnisimmet  Man.  Co.  599 

Lygo  V.  Newbold 159 

Lyle  V.  Barker 656 

Lyncli  V.  Knight 481 

Nurdin...54,  168,  486,  529 

Smith 183,  184 

Lynd  v.  Pickett 67 

Lyon  V.  O'Kell 420 

M. 

]\Iaclean  v.  Dunn 281 

Maclin  V.  N.  J.  S.  S.  Co 340 

Mack  V.  Patchen 61 

Macon  &  West.  R.  Co.  v.  Baber  159 
Macy  V.  The  City  of  Indianapo- 
lis  40,    41 

Madison  etc.  R.  Co.  v.  Taffee. . .  181 

Madon  V.  McGinnis 544 

Mad  River  R.  Co.  v.  Barber 176 

Magellan  Pirates 323 

Maguire  v.  Riggin 374 

Mahan  v.  Brown 32 

Maher  v.  Norwich  etc.  Tr.  Co. . .  507 

Riley    233,  248 

Maignau  v.  N.  0.  etc.  R.  Co 338 

Main  v.  King 150 

Maitland  v.  Goldney 552 

Major  v.  Dunnavant 395 

Malaun  v.  Ammon 403 

Mallen  v.  Bloomer 412 

Mallory  v.  Lord 279 

Maloy  V.  N.  Y.  C.  R.  Co. . .  .533,  690 

Manahan  v.  Noyes 278 

Manchan  v.  Smith 381 

Manix  v.  Maloiy 692 

Manger  v.  Baker 597 

Mangum  v.  Brooklyn  R.  Co. 164,  185 
Mann  v.  Grove 664 


Mansfield  v.  Watson 270,  565 

Manville  v.  W.  U.  Tel.  Co.  .356,  3-57 

Man  veil  v.  Thomson 558 

Mapes  V.  Weeks 115 

Marble  v.  City  of  Worcester.  .7,  163 
Marchesseau  v  M.  Ins.  Co... 60,  456 

Mariani  v.  Daugherty 701 

Mariolt  v.  Stanley 134,  175,  180 

Mark  v.  Patchin 425 

Markes  v.  Miller 125.  473 

Marks  v.  Gray 547 

Markham  V.  Gr.  Nor.  R.  Co 536 

Jaudon 314,  635 

Marlattv.  Clary 261 

Marsh  v.  Billings .584,  587 

Richards 2-56,  305 

Smith 541 

Webber 258 

Marshall  v.  Gantt 261 

Gunter 685 

Haney 419 

Simpson 610,  611 

Whiter 443 

Wood 265 

Marston  v.  Hobbs 372 

Martin  v.  Baker 372 

Culbertson 313 

Franklin 207 

Gordon .385 

Hardesty 545,  546 

Hooker -551 

Porter 601,602,  6-52 

Powell 602 

Scoehnberger 254 

Taylor 151,  437 

Wallace 508 

Washburn 428 

West.  U.R.  C0....49,  165 

Maurice  v.  Brady 138 

Mausler  v.  Harding .5.52 

Maxwell  v.  Hipp 225 

May  V.  Brown 552 

Mayberry  v.  ClifFe.660,  662,664,  665 

Maye  v.  Tappen 601 

Mayer  v.  Rosevelt 201 

Maynard  v.  Newman 201 

]\Iayo  V.  Temple 550 

Mayor  of  Columbus  v.  Howard.  316 
Mayor  etc.  N.  Y.  v.  Ransom. 576,  577 

Marquart  v.  La  Farge 61 

Maryland  v.  Bait.  etc.  R.  Co. . . .  503 

M  ason  v.  Chandler 153 

Masterton  v.  Mayor  of  Brooklyn, 

242,  301 

Masters  v.  Warren 534 

Mather  v.  Butler  Co 133 

Matheson  v.  N.  Y.  C.  R.  Co. .  • .  483 

Mathews  v.  Colo 63o 

Criblsett 434 

Mathewson  v.  West.  Ass.  Co...  460 


CASES  CITED. 


xlv 


PAGE 

Matteson  v.  Curtis 4:34 

Matson  v.  Buck 114 

McAtfee  v.  Crofford 45,  623,  62o 

Hale 298 

Mc Alexander  v.  Harris 114 

McAleer  v.  Horsey 270 

Mc  Alpine  v.  Lee 256,  268 

McAndrewv.  E.  Tel.  Co.. ..347,  358 
McAulev  V.  Birkhead.  .118,  558, 

559,  563 

McAvoy  V.  Wi-ight 271,  568 

McBride  v.  McLaughlin 25 

McCabe  v.  Plainer 551 

McCalson  v.  Gregan 622 

McCallv.  McDowell. 67, 110,  121, 

475,  541 

McCeady  V.  Kail  R.  Co 49 

McClelland  v.  Snider 286,  305 

McClintock  v.  Crick 114,  581 

Laiy "02 

McClure  v.  Gamble 385 

McColough  V.  Walton 68,  439 

McCombs  V.  Alrron 141 

Griffith 225 

McComb  V.  Reed 204 

McConaughy  v.  Mc  Mullen 4b0 

McCormic  v.  Kans.  etc.  R.  Co. .     40 
McCormick  v.  Pa.  C.  R.  Co. 628,  629 

Seymour 576 

McCoy  V.  Chiles 444 

Elder 436 

Hedge 298 

McCraig  v.  Q.  C.  Ins.  Co 4-56 

McCrea  v.  Brown 442 

P  u-mont 38(3 

McDaniel  v.  Emanuel .    53 

Strohecker 568 

McDonald  v.  North ....  591 ,  631 , 

639,  663 

Scaife 665 

Snelling 509 

Walter  ..699,  700,  701 

Woodruff 113,  116 

Goble 601 

N.J.  S.  S.  Co 3-^9 

McFadden  v.  Robinson 271 

McGary-  v.  Hastings 370,  397 

McGatrick  v.  Wesson •  •  •  •   1*8 

McGavock  v.  Chamberlain.  .659.  bbO 

McGehee  v.  Shafer 685,  6o7 

McGinnis  v.  Hart 6o9 

McGoon  V.  Shirk 20o 

McGoven  v.  Lewis •  •  330 

McGrew  v.  Stone 13-3,  4S:j 

McGregor  v.  Kilgore 322,  o2b 

McGuii-e  V.  Grant 536,  5% 

The  Golden  Gate 9o 

Mclnrav  v.  Dver 121,  122,  123 


McElroy  v. 
McEntee  v. 


PAGE 

McKee  v.  Brandon 386 

Pope 62 

McKeon  v.  Citizens  R.  Co 25 

Lee 604 

McKinley  v.  C.  &  N.  W.  R.  Co.,    91 

McKinzie  v.  Allen 4(i.j 

McKuiney  v.  Springer 298 

McKnight  v.  Dunlop 2o2 

Morgan ■J73 

McLaren  v.  Long 569,  273 

McLean  v.  Cook 542 

McLeod  V.  Tutt 506 

McMannus  v.  Cricket 70 

McMasters  v.  Cohen 480 

McMichael  v.  Mason. .  .123,  615,  62o 
McMillan  v.  Saratoga  etc.  R.  Co.  176 

Vanderlip 254,  290 

McMuUin  v.  Wooley 377 

McNair  v.  Compton. . .  .400,  405,  413 

McNamara  v.  King 24,  472 

jMcNaught  V.  Dodson 2(8 

McNear  v.  McComber 393,  596 

McNuttv.  Young 551 

McRae  v.  McNair -2) 

McWilhams  v.  Bragg 68,     87 

Mead  v.  Dogolyer 2o4 

Wheeler 148 

Means  v.  Milliken 419 

Meason  v.  Kaine 413 

Mech.  F.  Ins.  Co.  v.  Nichols. . .  462 

Mecklain  v.  Blake 681 

Medbury  v.  N.  Y.  etc.  R.  Co.. . .  322 

Sweet 338 

Meerson  v.  Hope ?'38 

Memphisetc.  R.Co.v.  On- 6(4 

Whitefield 

67,  535 
Mendelsohn  v.  Anaheim  Lighter 

Co 60,  67,68,70,92,  100 

Meneely  v.  Meneely 586 

Mentz  V.  Morrison 2(2 

Second  Av.  R 690 

Menzies  v.  N.  Brit.  Ins.  Co. . . .  461 

Mercer  v.  Jones 627,  630,  648 

Merchant  v.  Lewis old 

Mer.  Mut.  Ins.  Co.  v.  N.  0.  M. 

Ins.  Co 4o0 

Merick  v.  Bramard o'-J 

Germ.  Ins.  Co 463 

Merrill  v.  Ithaca  &  Oswego  R. 

Co 305 

Merrill  v.  Merrill 155 

Peaslee 77,    89 

Tariff  Man.  Co 89 

Merimack  Man.  Co.  v._Quintard,  256 

Meritt  V.  Benton " 208 

IMerrow  v.  Hunton ^00 

Merst  V.  Hei-vey 82,  83,  87,  689 


Mcintyre  y.^l^I.^Y.  C.  R.  Co.',  501,  505  |  Meroine  v  Saitor 201 

McKea  V.Brown 443  I  Messer  v.  Bingham 2bl 

4 


xlvi 


CASES  CITED. 


Metcalf  V.  Yonnp: 441 

Metropolitan  B'k  and    Shoe  & 
Leather  B'k  v.  Van  Dyck  ....  201 

Metz  V.  Albrecht 256 

Meyer  v.  Amdon 567 

Pacific  etc.  R.  Co.,  17.3,  188 

Fareall 440 

San  Francisco 51-5 

Meysenbury  v.  Schlieper 445 

Michie  v.  Jeffries 230 

Mich.  etc.  R.  Co.  v.  Heaton 339 

McDonough.  319 
Lahey  ..164,  173 

Middlekauff  v.  Smith 426 

Milbum  V.  Beach 68 

Belloni 263,  264 

Miles  V.  Harrigton..67,  114,  115, 

5-50   551 

Millard  v.  Bridge .'  311 

Stone 119 

MiUerv.  Adsit 311 

EUiott 1-54 

Garling 54 

Garrett 443 

Goddard 254 

Hays 119,  434 

KeUey 125 

Laubach 37 

Mariner's  Church 132 

Roy 1^4 

Sweitzer 474 

Taylor 581 

MiUison  v.  Hock 24,    67 

Mills  V.  Brooklyn 40 

Catlin 369 

Gilbreath 611 

]\Iilton  V.  Rowland 275 

Mil.  &  St.  P.  R.  Co.  V.  Armes. . .  471 

]\Iihvaukee  Belle 453 

Milwaukee  etc.  R.  Co.  v.  Finney, 

70,  92,  108 

Mingus  V.  Pritchet 247 

Minty  v.  Morrison 259 

Misner  v.  BuUard 442 

Miss.  C.  R.  Co.  V.  Whitfield. . . .  173 

Miss.  Ins.  Co.  v.  Ingram 457 

Missouri,  K.  &  T.  R.  Co.  v.  City 

of  Ft.  Scott 288 

Mitchell  V.  Billingsly 24 

Hawley 576 

Hazen 374 

Jenkins 547 

Mallingly 544 

Mills 395 

Warner 372 

WiscottaLandCo...  298 
Moberly  v.  Alexander.  .396,  421,  570 

Preston 114 

Mobile  &  M.  R.  Co.  v.  Ashcraft.  693 
Moffat  V.  Strong 425 


Monell  V.  Bums 254 

Monger  v.  Townawanda  etc.  R. 

Co 164 

Monmouth  etc.  Ins.  Co.  v.  Hut- 
chinson    467 

Monroe  v.  Prichett 566 

Leech 163 

Stickney 680 

Monsler  v.  Harding 551 

Montague  v.  Papin 671 

Montoyer  v.  L.  Ins.  Co 529 

Moody  V.  McDonald    108 

Osgood 534 

Whitney 594,  653 

Moone  v.  Republic 697 

Mooney  v.  Kennett 68 

Moore  v.  Aldrich 630 

Anderson 681 

Bowman 78 

Cent.  R.  Co 159 

Clav 551 

Martin 691 

Oastler 113 

Platte  County 155 

Riff 211 

Shultz 68,  441,  622 

Webber 428 

Moranv.  Dawes 5.58 

Moriey  v.  Dunbar. .  .26,  68,  476,  480 

Morford  v.  Ambrose 301 

Woodworth 108 

Morgan  v.  Dudley 608 

Gregg 633,  635 

Hughes 608 

Jones 194 

Kegley 444 

Powell 601 

Railway  Co 176,  177 

Ryerson 268 

Morgain  v.  Reynolds 659 

Yarborough 431 

Mon-ell  V.  Iiw.  F.  Ins.  Co. .  .457,  462 

MoniU  V.  Graham 618 

Mon-is  V.  Baker 114,  .5.54,  613 

Moses 480 

Phelps 374,  39-5 

Roman 385 

Morris  etc.  R.  Co.  v.  Haslan,  159,  165 

Morrison  V.  Davis 46 

Cornelius 159 

Cummings 293 

Lovcjoy 301 

Momssey  v.  Wiggins  Ferry  Co., 

167,  172 

Morrow  v.  Walsh 573 

Morse  v.  A.  &  S.  R.  Co 482.  534 

Brackett 26-5,  275 

Crawford 484,485,  486 

Erie  R.  Co 173 

Hutchm& 270,  569 


CASES  CITED. 


xlvii 


PAGE 

Morse  v.  Ratlibum lo9 

Richards 300 

Withenburgh 441 

Mortimer  V.  Thomas. . .  .120,  541,  691 

Moses  V.  Stevens '254,  291 

Mosely  v.  Dunbai- 125 

Moss  V.  Johnson 176 

Smith 4-50,  453 

Mostey  v.  Hunter 681 

Mote  V.  Chicago  etc.  R.  Co.,  195, 

329,  660 

Motley  V.  Wfg  F.  Ins.  Co 459 

Mott  V.  Mott 150,  155 

Moulton  V.  Richardson 445 

Mouslor  V.  Harding 113,  115 

Mower  v.  Kipp 436 

Mowry  v.  Home  Ins.  Co 469 

Wood 67 

Mowery  v.  Whitney 576 

Moyer  v.  Pine 114 

Mueller  v.  St.  L.  I.  M.  R.  Co.  592,  599 

Muler  V.  Boggs 698 

Muller  V.  St.  Louis  etc.  R.  Co. . .  592 

Fern 443 

Mullett  V.  ChalUs 612 

Mason.. 238.  258,  262, 

271,  569 

Hulton 114 

Mumford  v.  Hallett 454 

Munson  v.  Price 282 

Murphy  v.  Chicago 40 

City  of  Fond  du  Lac.  593 

Dart 475 

Dean 159,  183 

N.  Y.etc.  R.  Co.510,  514 
Murray  v.  Hud.  R.  R.  Co.. 691, 

694,  695 

Merideth 257 

Murrellv.  Whiting 337 

Murry  v.  Currie 177 

Muschamp  v.  Lancaster  R.  Co. 

324,  325,  360 

Musgrove  v.  Beckendorf' 636 

Myers  v.  Bums 426 

ExteU 42-<2 

Ljmn 617 

York  etc.  R.  Co 302 

Myltonv.  M.  R.  Co 360 

Nagle  V.  Mullison 26,  67 

NaUyv.  Shobe 660 

Nassaman  v.  Rickert 107 

Nash  V.  Harmosilla 139,  155 

Nashua  Lock  C.  v.  Worcester  R. 

Co 324,  325 

Nashville  etc.  R.  Co.  v.  Elkin. . .  507 
Nations  V.  Cudd 303 


Nanyatuck  R.  Co.  v.  Button  Co.  325 

Naumann  v.  CaldweU 635 

Neai-nsT.  Harbert 303 

Nebraska  City  v.  Campbell 483 

Needham  v.  Frazer 670 

San  Francisco  R. . .  159 

Needles  v.  Howard 317 

Neff  V.  Clute 210 

Negley  v.  Lindsey 570 

Negus  V.  Simpson 316 

Neiler  v.  Kelly .  029,  636, 648.  655,  656 

Nelson  v.  Evins 114 

Neilv.  Gillett 174 

Nelson  v.  H.  etc.  R.  Co 339,  345 

Nendel  v.  North 396 

Nesmith  v.  Calvert 576 

Neville  v.  Frost 2-54 

Nevins  v.  Bay  State  etc.  Co 357 

Peoria 40 

Newcomb  v.  Cin.  Ins.  Co 468 

Newell  V.  Downs 546 

New   Haven  Steamboat  Co.    v. 

Vanderbilt 104,  174 

Newhouse  v.  Miller 174 

New  Jersey  Ex.  Co.  v.  Nichols, 

159,  182. 
New  Jersey  etc.  R.  Co.  v.  West.  688 

Newman  v.  McGregor 298,  301 

New    Orleans    etc.    R.    Co.    v. 

Bailey 25,93,  99,  101 

New  Orleans  etc.  R.  Co.  v.  Hurst, 

68.  93,    95 
New  Orleans  etc.  R.  Co.  v.  Stat- 

ham 66,  90,  91,  621 

New  Orleans  etc.  R.  Co.  v.  Tyson  338 

Newsam  v.  Carr 546 

Newton  v.  Price 683 

New  York  City  v  Ransom 579 

N.  Y.  F.  Ins.  Co.  v.  Delaven.. . .  462 
New  York  G.  &  I  Co.  v.  Flynn..  661 
New  York  etc.  R.  Co.  v.  Story. .  287 
N.  Y.  &  W.  P.  Tel.  Co.  v.  Dry- 
burg 347,  349,361,  .362 

Nibbe  v.  Brauhn 293 

Niblo  V.  N.  Am.  Ins.  Co.. .  .458,  461 

Nichol  V.  Bostwick 681 

Nichols  V.  Freeman 58,  418 

Hill 419 

M.  F.  &M.  Ins.  Co..  451 
Nicholson  v.  N.  Y.  &  N.  H.  R. 

Co 685 

Night  V.  Foster 115 

Nightengale  V.  Scannell.  .24,  65, 

67,  615 

Nilson  V.  Gray 438 

Nimick  v.  Holmes 451 

Nixon  V.  Nixon 232,  247 

Nobles  V.  Bates 155 

Noble  V.  Googins 421 

Walker 209 


xlviii 


CASES  CITED. 


PAGE 

Noonanv.  Ilsley..211,  374,  375,  681 

Norsaraan  v.  Recert 69 

Northern  etc.  R.  Co.  v.  State.  172,  183 

North  Mo.  R.  Co.  v.  Akers 537 

North  Penn.  R.  Co.  v.  Hielman.  166 
Mahony 

185,  486 
Robinson 

501,  516 

Nor.  Tr.  Co.  v.  Selick 628 

Northup  V.  Cook 233 

Norris  v.  Litchfield 519 

Norton  v.  Babcock 381 

Sewall 509 

Nosier  v.  Hunt 367,  370 

Noves  V.  Rutland  R.  Co 325 

Smith 178 

Nudd  V.  Wells 698 

Nutall  V.  Bracewell 36 

Nutting  V.  C.  R.  R.  Co 360 

Herbert..  ..367,  368.  385 

Nye  V.  Merriman 26,  67,  271 

Nyes  V.  MoiTistown 164 


o 


Oakland  R.  Co.  v_.  Fielding 535 

Oberlander  v.  Spiess 567 

O'Brien  v.  Copwell 428 

O'Connor  v.  Foster 330 

Pittsburgh 40 

Odlin  V.  Grove 699 

O'Donnell   v.  Alleghany  Valley 

R.  Co 166 

Oslrichs  v.  Spain 443 

Offutt  V.  Edwards 441 

OTlaraty  v.  Union  etc.  R.  Co. . .  187 

Ogden  V.  Claycomb 478 

East  River  Ins.  Co 465 

Lathrop 315 

Marshall 330 

N.  E.  Ins.  Co 466 

Ogg  V.  The  City  of  Lansing 33 

Ogletree  v.  State 480 

Ohio  V.  Jones 615 

Ohio  etc.  R.  Co.  v.  Brubaker. ...  674 

Evans 418 

Gallott 174 

Tindali 502 

Shanefelt 47 

O'Keefe  v.  Chicago  etc.  R.  Co. ..  169 

Oldfield  v.  Har.  R.  Co 502 

New  York  etc.  R.  Co. 

182,  502,  505,  685 

Olivant  v.  Bayley 262 

Oliver  v.  Chapman 67 

O'Mara  v.  Hud.  R.  R.  Co 505 

O'Meara  v.  N.  Am.  Min.  Co.. . .  630 
O'Reilly  v.  McChesney 598 


Crock  V.  M.  F.  Ins.  Co 451 

Orr  V.  Bigelow 282 

Ortman  v.  Greenman 609 

Osgood  V.  McConnell 43 

Ottawa  Gas  Co.  v.  Graham. . . .  536 

Otter  V.  Williams 630 

Outcaultv.  Burling 121,  619 

Ousley  V.  Harding 66,     68 

Owenv.  O'Reiley 680 

Routh 243 

Willis 228 

Owens  V.  Han.  &  St.  Jos.  R.  C  180 

Owsley  V.  Greenwood 193 

Overhiserv.  McCallister. . .  .367,  370 

Overton  v.  Phelan 262 

Oviattv.  Pond 620 

Oxendale  v.  Wetherell 255 


Paddock  v.  Com.  Ins.  Co 454 

Pac.  M.  S.  S.  Co.  V.  Luting 443 

Packard  v.  Slack 272,  569 

Page  V.  Cole 563 

Gushing 547 

Dickerson 276 

Ford 241 

Fowler.. 593,  633,  637, 

640,  642,  661 

Marsh 256 

Mitchell 483 

Ott 254 

Parker. 70,  256, 271,  273,  568 

Pavey 264 

Fallen  v.  Leroy 280 

Palmer  v.  Andrews 119,  434 

Cook 117,  663 

De  Witt 581 

Panton  v.  Holland 621 

Park  V.  Bates 385,  386 

Cheek    368 

McDaniels 629 

Norris  Axe  &  Tool  Co..  264 

O'Brien 174 

Parker  v.  Adams 163,  173 

Brown 386,  699 

Carson 226 

Corbin 576,  578 

Davis 201 

Eagle  Ins.  Co 462 

Griswold 593 

Hulme 576 

Mil.  etc.  R.  Co 338 

Mise 24,    67 

Tiffany 310,  311 

Wheeler 620 

Parks  V.  A.  Tel.  Co 347,  352 

Boston..^. 628,  629 

Parmelee  v.  W.  Trans.  Co 326 


CASES  CITED. 


xlix 


PAGE 

Parmelee  v.  Wilks 45 

Parrott  v.  Wells 489 

Parsons  v.  Hardy 320 

Harper 538 

Martin 629 

M.  Ins.  Co 450 

Sexton 277 

Parton  v.  Honnor 129 

Partridge  v.  Hatch 374 

Pass.  R.  Co.  V.  Donahoe 482 

Pasely  v.  Freeman 56 

Passinger  v.-  Thorburn 262,  263 

Patapsco  Ins.  Co.  v.  Southgate..  451 

Patnote  v.  Sanders 293 

Patrick  V.  Clay 195 

Putnam 289 

Patten  v.  Chicago  etc.  R.  Co 685 

Thompson 685 

Patterson  v.  N.  C.  R.  Co 319 

Stewart 382 

Westervelt 210 

Paul  V.  Slason 682 

Paulmier  v.  E.  R.  Co..  .172,  502,  684 

Paunsett  v.  Fuller 401 

Pajme  v.  Clark 194 

Pearson  v.  Lemaitre 67 

Williams 139,  155 

Pease  v.  Clayton 608 

Peck  V.  Hiler 425 

Hubbard 247 

Mayo 207 

Mayor  of  N.  Y 507 

Peddie  v.  Q.  F.  Ins.  Co .'. . .  456 

Pedrick  v.  Porter 568 

Peele  v.  M.  Ins.  Co. . .  .449,  451,  452 

Peerce  v.  Atterv 445 

Peet  V.  Chi.  &  N.  W.  R.  Co  . . . .  323 

Pelburgh  v.  Gorham 613 

Pellenz  v.  Bullerdick 544 

Peltier  v.  Mict 454,  553 

Pemberton  v.  N.  Y.  C.  R.  Co. . .  339 

Pence  v.  Dozan 560 

Pendleton  etc.  R.  Co.  v.  Stall- 
man 175 

Pennckill  v.  Sec.  Av.  R.  Co 519 

Penoyer  v.  Sagmaw 37,  603 

Penrose  v.  Curran 484 

Penn.  Canal  Co.  v.  Bentley,  182,  533 

Graham 483 

Penn.  R.  Co.  v.  Bantom 505 

Beale 166 

Books 26 

Buffalo    etc.    R. 

Co 319,  320 

Butler 501 

Goodman. .  ..159, 

505,  684 

Henderson 502 

Keller 502,  503 

KeUey 501 


PAGE 

Penn.  R.  Co.  v.  Kerr 46,  528,  529 

McCloskey...501,  505 

Ogier 506,  516 

Vandever....501,  506 
Zebe....501,502,  507 

Pennell  v.  Woodbum 261 

Pennyman  v.  Hartshorn 2S1 

People  V.  Hayden 669 

Love 155 

Stryker 617 

Peoria  Bridge  Asso.  v.  Loomis. 

24,  68,  90,  100,  482.  534.  535,  691 

Peoria  M.  &  F.  Ins.  Co.  v.  Lewes..  463 

WUson.  467 

Percival  v.  Hichbom 421 

Perie  V.  Steele 451 

Perkins  v.  Hackleman..594,  620,  621 

Lyman 138,  154 

Pitman 512 

Portland  etc.  R.  Co..  322 

Towle 25,67,  78 

Periey  v.  Balch ■_73,  277,  284 

Eastern  R.  Co. .  .47,  49, 

529,  531 

Perry  v.  Johnson 540 

Prov.  Ins.  Co 469 

Smith 211 

Peters  v.  M-Keon 58,  403,  405 

Whitney 305 

Peterson  v.  Aver 234,  242 

Burn 273 

Pettit  V.  Mercer 439 

Petty  V.  OveraU 314 

Phalan  v.  Andrews 241,  257 

Phelin  v.  Kenderdine 557,  559 

Phelps  v.  Foster 444 

Hovle 557 

McGee 248 

Owens 611 

Phenix  v.  Clark 661 

Phil.   Wil.   &    Bait.   R.  Co.  v. 

Howard 242 

Philadelphia  etc.  R.  Co.  v.  Quig- 

ley 26,66,  67,    90 

PhilUps  v.  KeUey 128 

Lawrence 26,     89 

Nock 576 

Periy  Co.  Ins.  Co. . .     466 

Philips :..  702 

Reichert 395 

Spevers 204 

Williams 228 

Philo  v.  m.  C.  R.  Co 512 

Philpots  V.  Evans 232 

Phipps  V.  Tarpley 363,  384 

Phiney  v.  Baldwin 194 

Pickens  v.  Decker 520 

Pickering  v.  Bard  well 278 

Truste 121 

Pickets  V.  Bait.  R.  Co 339 


CASES  CITED. 


Picket  V.  Crook 26,  67,    91 

Pierce  v.  Athey 436 

Atwood 609 

Benjamin....  122,  624,  628 

Fuller 154 

Payne 696 

Pierce 561 

Wood 697,  699 

Pierpont  v.  Fovvle 584 

Pierson  v.  Eaarle  Screw  Co 577 

Pike  V.  Dilling 25,    93 

Hanison 539 

Nichols 68 

Piffgott  V.  Eastern  Counties  R. 

Co 49,  529 

Pillsbury  v.  Moore 603 

Pinckney  v.  Pulsife 697 

Pinkerton  v.  Caston 138 

Man.  it  L.  R.  Co  . .  640 

Pinney  v.  Andrus 258 

Gleason 211 

Piper  V.  Manifee 55 

Pitcher  v.  Hazen 374 

Livincrston  .  .374,  384,  390 

Pitkin  V.  Leavitt 368 

Pitt  V.  Yalden 618 

Pitts  V.  Hall 575,  587 

Pitts.  Coal  Co.  V.  Foster 244 

Pittsburgh  etc.  R.  Co.  v.  Henniy-h,  684 
Methuen,  159 
Thompson  515 

Pixler  V.  Nichols 297,  298 

Piatt  V.  Brown 67 

Playford  v.  U.  K.  Tel.  Co.. .  361,  362 

Plumb  V.  Ives 621,  622 

Woodmansee 440 

Plummer  v.  Hai-bert . . .  .24,  475,  611 

Polk  V.  Allen 627 

Pollet V.Long 598 

Pond  V.  Wyman 303 

Pool  V.  Simons 311 

Porter  v.  Barrow  .    15 

Bradley 375 

C.&N.W.  R.Co.,  324,  -328 

Seiler 66.68,  107,  129 

St.  Bt.  New  England. .  343 

R.  R.  Co 100 

Portman  v.  ]\Iiddleton 304 

Posey  v.  Garth 254,  290 

Post  v.  Hamp.  Mut.  Ins.  Co 462 

Williams 568 

Potman  v.  Middleton 238 

Potter  V.  C.  &  N.  W.  R.  Co 

173.  505,  507,  693,  699 

Scale 544 

Thompson 697 

Pounsett  V.  Fuller 65 

Powell  V.  Burrows 139 

Deverny 529 

Gudgeon 456 


Powell  V.  Salesbuiy 53 

Powers  V.  Presgrove 114 

Prader  v.  Grim 442 

Pratt  v.  Battles 121 

Gardner 608,  616 

Stearns 204 

Preble  v.  Baldwin 378 

Prentice  v.  Dike 264 

Shaw 22,  127 

Prescott  V.  Truman 374,  375 

Wright 624 

Pribble  V.  Kent 655 

Price  V.  Powell 131 

Reeves 204 

Priestly  v.  Fowler 176 

N.  I.  R.  Co.,  324,  332,  335 

Prichard  v.  Martin 303 

Pringle  v.  Spalding 405,  406 

Prior  V.  Wilson 239 

Pritehet  v.  Boevey 538 

Prop.  etc.  v.  Wood 319 

Proteus  V.  Hazel 700 

Pugh  v.  McRae 610 

Pullman  v.  Corning 254,  292 

Pulver  v.  Harris 476 

Pumpellv  v.  Phelps 416 

Pymv.  E.  R.  Co 520 

Great  Nor.  R.  Co.. .  .504.  516 


Q. 


Quarles  v.  George.  246 

Quin  V.  Moore 502,  503 

Quick  V.Holt 519 

Quimby  v.  Carter 671 

Quinton  v.  Van  Tuyl 473 


R 


RadcUfF  V.  Brooklyn 34,    40 

Railroad  Co.  v.  Gladmaji.82, 182, 

184,  485 

Manufac.  Co 339 

Raves 320 

Stout 486 

Whitton 166 

Rains  v.  Calaway 395 

Ralson  v.  Donnovan 320 

Rand  v.  White  M.  R.  Co 232 

Randal  v.  Everett 133 

Raper    258 

Ranger  v.  Goodrich 114 

Ran.«om  v.  N.  Y.  I't  E.  R 5:}4 

Rathbones  v.  Fowler 453 

Rathbun  v.  Pavne 154 

Ratlirt"  V.  Huntley. 623 

Ranch  V.  Lloyd 486 

Raver  v.  Webster 439 


CASES  CITED. 


U 


Rawdon  v.  Burton 232,  %jo 

Rawlings  v.  Bell -^66 

Rawlinson  v.  Clark 143,  173 

Rawls  V.  Am.  L.  Ins.  Co 469 

Rawley  v.  Woorlmtf 256 

Rawson  v.  N.  Y.  k.  E.  R.  Co. .  •  -  482 

RajTnond  v.  Hindman 520 

Raynerv.  Clark 436 

Rea  V.  Minkler 377,  383 

Tucker 117,  558,  560 

Reab  v.  Moore 254,  290 

Read  v.  Fairbanks 628,  630 

Rami 255 

Ream  v.  Watkins 303 

Rectors  Trinity  Church  v.  Hig- 


gins. 


377 


Reddie  v.  Scoot 560 

Reed  v.  Hamilton 3tf3 

Harper 552 

Howe 62 

Kelly 481 

Phil.  R.  Co 320,  344 

Reeder  v.  Purley. . .  .24,  68,  471,  625 

Reecling  v.  Keppleman 40 

Reese  v.  Steams 204 

Reeves  v.  Delaware  etc.  R.  Co. .  158 

Dickey 443 

Reggio  V.  Braggiotti. .  .2-59,  261,  275 

Reiley  v.  Delatield 454 

Jones 138,  145 

Renck  v.  McGreggor 541 

Reno  V.  Wilson 24,  .544 

Rens.  Glass  Factory  v.  Reid 195 

Rex  V.  Ins.  Co 460 

Rexford  v.  Knight 669 

Rej-nolds  v.  Chandler  Riv.  Co  . . .  538 

Haurahan 519 

Shreyeport 40 

Tucker 115 

Rice  V.  Benedict 314 

Dwight  Man.  Co 2-54 

Hollenbeck 651 

Nickerson 620 

Ontario    Steamboat  Co. 

322,  327 

Simms 684 

Ponder 54S 

Johnson 374 

Richards  v.  Sandfbrd TOO 

Richardson  v.  Chynowith 241 

Dunn 238 

Edick 155 

Kelly 385 

Northmp •  •  •  113 

Richmond  v.  Dubuque  &  Sioux 

CityR.  Co 29    302 

Richmondville  v.  Ham.  Mut.  Ins. 

Co 46-5 

Ricker  v.  Freeman 173 

Rickey  v.  McBean 548 


Ricketson  v.  Richardson 155,  435 

Rider  v.  Hathaway 654 

Ridgely  v.  Hewitt 529 

Rigby  V.  Hewitt.... 9,  144,  169,  591 

Rignier  v.  Cabot 115 

Ripley  v.  Davis 627,  6.30 

Hazelton 278 

Mosely 437,  439,  441 

Rittenhouse  v.  1.  L.  Tel.  Co.  -3.53,  3-56 

Rixfbrd  v.  Smith 320 

Rhodes  v.  Baird 242 

Bunch 473 

City  of  Cleveland 41 

Thwartes 281 

Woods 665 

Roberts  v.  Carter 266 

Chicago -34,    40 

Connelly 5-58 

Dast 444 

Fleming 2-59 

Mason. . .  .25,  66,  68,  107 

Robeson  v.  Brown 225 

Robertson  v.  Kerby 673 

Lemon 394 

Robinson  v.  BaiTOws 629 

Cone.  1.59,  168,  185,  486 

Flmt 62 

Harman 409 

Hartridge 628,  630 

Hud.  R.  R.  Co 700 

Hurley 621 

Kenney 153 

N.  Y.  Cent.  R.  Co. 

182,  183 

Rupert 22 

Varel 4:3 

Rockwell  V.  Allen 3 

Third  Av.  R 689 

Rodes  V.  Bronson 202 

Rodrique  v.  Tadmire -545,  546 

Rogers  v.  Beard 30l 

Hanson 275 

Spence 655 

Rollv.  Augusta 40 

Rolph  V    Crouch 238 

Romaine  v.  Van  Allen 6:34 

Rome  V.  Omberg 40 

Rome  R.  Co.  v.  Sloan 327 

Sulivan 311 

Roper  v.  Clay 431,  432 

Root  V.  King 551 

Punch 573 

Rose  V.  Beattie 57 

Boseman 235,  248 

U.S.  Tel.  Co 362 

Wallace 2.58,  2-59 

Roseman  v.  Canovan 270 

Ross  V.  Hill 310 

Ross 5-55 

Roth  V.  Smith 24,  120,  625 


lii 


CASES  CITED, 


PAGE 

Rounds  V.  Mumford 41 

Rowan  v.  People 697 

State  Bank 625 

Rowe  V.  Heath 394 

St.  City  of  Dublin 323 

Rowland  v.  Shelton 283,  284 

Rowley  v.  Gibbs 662 

Lond.  etc.  R.  Co.503,  506 

Royce  v.  Duggenheim 425 

Rozet  V.  McClelan 314 

Rubber  Co.  v.  Goodyear 5<6 

Ruddington  v.  Henry 421 

Rudolphe  v.  Fuchs 519 

Ruldesbarger  y.  McDaniels 445 

Rundell  v.  Lackey 397 

Runnells  v.  Webber 377 

Russ  V.  S.  S.  War  Eagle. .  .482,  687 

Russell  V.  Copeland 406 

Huster 121 

Mayor  of  N.Y 37 

Palmer 618 

Rush 428 

Root  V.  King 114 

Ruter  V.  M.  C.  R.  Co 344 

Ryan  v.  Anderson 442 

N.Y.  Cent.  R.  Co..  46. 

527,  529 

Ryburn  v.  Pryor 627 

Ryder  v.  Thayer 15 

Rynear  v.  Neilen 563 


s 


Safely  v.  Gilmore 422 

Sainter  v.  Ferguson 143 

Salle  V.  Light 

Salmon  v.  Valejo 372 

Salsbury  v.  Hirshinroder 471 

Sanborn  v.  Bachelder 273 

NUson...     ..77,87,  117 

Chamberlain 419 

Sanbum  v.  Emerson 699 

Sandback  v.  Thomas 544 

Sanders  V.  H.Ins.  Co 460 

SanderHn  v.  Shaw 620 

Sanderson  v.  Caldwell 89,   550 

Sargent  v.  Denison 562 

Franklin  Ins.  Co....  629 

Pomeroy 617 

Sarpy  v.  New  Orleans 385 

Sartup  V.  Cortazzi 232,  248 

Saunders  v.  Brosius 631,  639 

Clark 250 

Johnson 551,  555 

Vance 630 

Sanford  v.  Hayes 201 

Sawyer  v.  Dulany 340 

Han.  &  St.  J.  R.  Co.  688 
Sauer 175 


PAGE 

Sawyer  v.  Vermont  etc.  R.  Co. .  674 

Savage  v.  Gunter 617 

Savercool  v.  Farwell 250 

Saville  v.  Roberts 129,  544 

Sayre  v.  Sayre 551 

Say  ton  v.  Bacon 53 

Scanlan  v.  Cowley 548 

Schfcffer  v.  Hoges 209 

Schattner  V.  Kansas  City. ..  .40,     34 

Schellv.  Plumb 193 

Scherpf  v.  Szadeczsky 685,  695 

Schierhold  v.  North  Beach  R.  Co. 

188.  486 
Scliindel  v.  Schindel. . .  .67,  597,  670 

Scofield  V.  Day 195,  207 

Fen-eers 665 

L  H.  Co 372,  373 

Schoraimer  v.  Palmer 562 

Schley  v.  Lyon 656 

Schanler  v.  Porter 692 

Schmidt  v.  Milwaukee  etc.  R.  Co.  185 

Schnebley  v.  Shirtcliff 278 

Schneider  V.  McCabe 686 

Schnerr  v.  Lemp 254 

Schrodder  v.  H.  R.  R.  Co 325 

Schuylkill  Nav.  Co.  v.  Fan- 597 

Schuyler  v.  Sylvester 441 

Schultz  V  Pac.  Ins.  Co 685 

Schwabacker  v.  Wills 686 

Schwazel  v.  Holemshade 579 

Scofield  V.  Ferris 544 

Scott  V.  Boston  &  N.  0.  Steam- 
ship Co 323,  337 

Scott  V.  Dublin  etc.  R.  Co 162 

Mavor  etc 175 

McKinisli 115 

Rogers... 635,  642,  643,  645 

Shepherd.. 7,  9,  43,  51.  529 

Scotthorn  v.  S.  S.  R.  Co. . .  .324.  360 

Scovillv.  Griffith 332 

Scranton  v.  Tilley 262,  268 

Security  Ins.  Co.  v.  Farrell 459 

Seely  v.  Alden. . .  .594,  598,  619,  621 

Soager  v.  Slingerland 561 

Seagrave  v.  U".  M.  Ins.  Co 455 

Seger  v.  Barkhamsted 482,'  534 

Seaman  v.  Luse 665 

Seamore  v.  Harlan 368,  386 

Sears  v.  Lyons 67,  83.  87,  622 

Hathaway....  129,  544,  546 

Seaver  v.  Boston  etc.  R.  Co 178 

Seay  v.  Greenwood 439 

Seldcn  v.  Cushman 109 

Selkirk  v.  Cobb 629 

Solloch  v.  French 194 

Selma  etc.  R.  Co.  v.  Lacy 507 

Senclair  v.  Eldred 544 

Sceting  v.  The  Atlantic  Mut.  Ins. 

Co * 204 

Severance  v.  Healy 78,    88 


CASES  CITED. 


liii 


PAGE 

Sewalls  V.  risk §96 

Seaver  v.  Morse ^^J 

Sexton  V.  Brook 68-3 

Zett '^20 

Seymour  v.  Maddox 175 

R.  R.  Co 100 

McCormick 574, 

577,  578 

Shandon  v.  Comstock 338,  419 

Shallcnbai-^er  v.  Brmton 201 

Shankland  v.  Cooper 221 

Shai-on  v.  Mosier 65,  265,  2(o 

Rogers 256 

Sharp  V.  O'Brien 699 

Powell 483 

Shattuck  V.  Green 283 

Shaw  V.  Boston  etc.  R.  Co 686 

Cunimiskey 604 

Davis 542 

Fellon 451 

Hoffman 424 

Holland 244 

Wilkins 385,  405 

Shearman    v.    Fall    River    Iron 

Works 131,  160 

Shearman  v.  West.  Stage  Co 

163,  169,  174,  180, 
491,  502,  503,  505, 

514,  516,  685,  695 

Sheehan  v.  Collins 114 

Sheets  v.  Andrews •j86 

Sheldon  v.  Can^enter..  .543,  544,  548 
Shepard  v.   Milwaukee  Gas  L. 

Co 241,  242 

Sherely  v.  Billings 341 

Sherman  v.  Mitchell 684 

Rawson 432 

Rochester  etc.  R.  Co.  176 

Wells 123,  322 

Sherrod  v.  Langdon 56,  258, 

272,  275,  569 

Shen-y  v.  Schuyler 624 

Shiell  V.  Mc  Aite lo5 

Shields  V.  W.  Tel.  Co 356 

Shipman  v.  Miller 211 

Shipton  V.  Casson 25o 

Shirley  v.  Bilhngs 474 

Shoffv.  Wells 702 

Short  V.  Stone 432 

Shotwell  V.  Wendover 631,  6oo 

Shoultz  V.  Miller 552 

Shreve  v.  Brereton 155 

Shultz  v.  Morrison 443 

Shuneman  v.  Pahner 562 

Shute  V.  Ban-ett 555 

Sieveking  v.  Litzer •  •  567 

Sikesv.  WUd 401,  402 

Sill  V.  Brown 159,  169 

SilUman  v,  Lewis •  •  •  •  159 

Silsbury  v.  McCoon 651,  ba^ 


Silsbe  V.  Lucas 440,  445 

Simmons  v.  Brown 601 

Camden 41 

Simpkins  v.  Low 266 

Simpson  v.  Black 434 

City  of  Keokuk  ....  134 

Griffin 220 

McCaffrey 471 

Wren 313 

Sinclair  v.  Bowles 290 

Talmage 298 

Singer  v.  Farnsworth 304 

Single  V.  Schneider 662,  665 

Singleton  v.  Boone  Co.  Ins.  Co.,  462 
Sisson  V.  Cleveland  etc.  R.  Co.. .  823 

Siter  v.  Mon-is 460 

Sims  v.  Marryat 284 

Skinner  v.  Bridge  Co 40 

Skipp  V.  Eastern  etc.  R.  Co 175 

Slater  v.  Emerson 254 

Rink 472,  482 

Shennan 68,  471 

Slaughter  v.  McRae 266 

Sledge  V.  Pope 480 

Sleeper  v.  Sandown 189 

Sloot  V.  Royal  Ins.  Co ■^■-  46-3 

Smeid  v.  Foord 238,  332 

Smith  V.  AUison 560,  563 

Brady 254,  292 

Bristol 304 

Clark 533 

Cozart 27o 

Dunlop 211,  630 

Gonder 596 

Griffith 323 

Holcomb 483 

Huizar 681 

Jefts 375 

London  &S.W.R.  Co.. 

48,  539 

Hasten 694,  695 

McGuu-e 337 

Milburn 560 

Newcastle 429 

N.  C.  R.  Co 339,  345 

N.  Haven  R.  Co 319 

O'Conor 185 

Overby 24,  483 

Peat 426,  595 

Pliillips 605 

Proprietors  of  Meeting 

House 301 

Railroad  Co 472 

Reevess 649 

Shaw 207.  690 

Sheppard 319,  320 

Smith 154,  155,  551 

Sprague 394 

Steinkamper 26d 

Strong 368 


Hv 


CASES  CITED. 


PAGE 

Smith  V.  Tooke.. 612 

Wainwright 155 

Washington 40 

Whitaker 154 

Wilburn 118 

Woodbine Ill 

Yoram 36 

Smithson  v.  U.  S.  Tel.  Co 347 

Smithurstv.  Woolston 247,  629 

Smithwith  v.  Ward 107,  481 

Smyth  V.  Hyndman 546 

Smoot  V.  Wetumpka 32,  33 

Snelling  v.  Lynch 301 

Snively  v.  Fahnestock 597 

Snow  V.  Grace 109 

Housatonic  etc.  R.  Co. 

175,  176,  178 

Snyder  v.  Fulton 89,  550 

Somer  V.  Wilt 25 

Soper  V.  Heniy 32 

Soulard  v.  St.  Louis 669 

Southard  v.  Rexfbrd. .   .111,  431  432 

South  V.  Dunston 558 

Southerland  V.  Crawford 443 

Southern  R.  Co.  v.  Kendrick.68, 

519,  681 
South  Royalton  Bk.  v.  Safford 

B'k 129 

South  Shields  Water  Works  Co. 

V.  Cookson 36 

So-well  V.  Champion 615 

Sowers  v.  Ernhart 225 

Spafibrd  v.  Harlow 519 

Spaid  V.  N.  Y.  etc.  Steamship  Co  319 

Spain  V.  Arnott 290 

Spoor  V.  Holland 656 

Sparks  V.  Maseck 283 

Purdy 648 

Sparrow  v.  Paris 138 

Spaulding  v.  Lord 194 

Spedding  v.  Nevell 418 

Spencer  v.  Long 625 

McMaster 684 

Nicaetc.  R.  Co 158 

Prindle 204 

Tilden 155 

Sperry  V.  Wilcox 553 

Spicer  v.  C.  &  N.  W.  R.  Co.  535,  692 

Spigelmeyer  v.  Walter 598 

Spikes  V.  English 26 

Spivey  v.  McGehee 439 

Spoor  V.  Holland 315 

Spottswood  V.  Clark 587 

Sprague  v.  Craig 120,  430 

McKenzie 625 

Spring  V.  Chase 369 

Haskell 322 

Springdalc  v.  Smith 149 

Springer  v.  Wise 544 

Springle  v.  Spalding 414 


PAGE 

Sproule  V.  Ford 629 

Squib  V.  Hale 609 

Squire  v.  HoUenbeck 122,  624 

Stadler  v.  Parmelee 439,  440 

Staley  v.  Murphy 421 

Standard  v.  Eldridge 375 

Stanley  v.  Webb .552,  553 

Whipple 577 

Stark  V.  Parker 254,  291 

State  V.  Bishop 617 

Freeman 611 

King 247 

Lynes 612 

Manchester  etc.  R.  Co. .  159 

Martin 480 

State  of  Md.  v.  B.  &  0.  R.  Co..  501 

Powell 134 

Queen 540 

Sandusky 436 

Smith 630 

Thomas  . . .  .440,  441 

State  Bank  v.  Morris 439 

Staats  V.  Ten  Eyck. . .  .368,  388,  390 

Steadman  v.  Simmons 697 

Steamboat  New  World  v.  King.  482 

Steamboat  Co.  v.  Parker 254 

Whillden 24 

Stearns  V.  McCullough 265,  275 

Steele  &  Burgess  v.  Townseud. .  357 

Steele  v.  Burkhardt 167 

Thatcher 443 

Sawyer 220 

Steinburg  v.  Gebhert 303 

Stellar  v.  Nellis 476 

Sterling  v.  Garrittee 627,  630 

Peet 385 

SteiTctt's  Ex'rs  v.  Kaster 616 

Stephens  v.  Mt.  Ins.  Co 458 

Cady 584 

Evans 419 

Felt 577 

Gladding 594 

Wilkms: 609 

Stephenson  v.  Harrison 406 

Hart 311 

Little 654 

Price 232,  311 

Stetson  V.  Croskey 271 

Stevens  v.  Barringer 193 

Elwall 311 

Tassett 547 

Tuite 663 

Stevenson  v.  Belknap.. 68,  558, 

559,  662 

Greenlee 568 

M.  Tel.  Co 348 

Smith 663 

Stewai-t  V.  Drake 375,  886 

Noble.'. 403 

State  of  Maryland..  34,  444 


CASES  CITED. 


Iv 


Stewer  v.  Buhler 114 

Stickney  v.  Allen ^p 

Stiles  V.  Geesey •  •  •  •  •  •  •  li,'^ 

Stimpson  v.  Railroads..  .89,  5(b,  b^y 
Stockbridgce    Iron    Co.    v.   Cone 

Ironworks 592,699.  602 

Stockton  V.  Frey •  •  •  •  fSd 

Stokes  V.  Saltonstall 1 '2,  d41 

Landgraff o84,  58o 

Stone  V.  Codman 50,  629 

Crocker 547 

Daney 566 

Gilliam 247 

Varney 551 

Stonebreaker  v.  Stonebreaker . . .  586 

Stoneman  v.  Erie  R.  Co b44 

Stoneseifer  v.  Sheble 60 

Stopp  V.Smith 620 

Stoi-m  V.  Smith ■■■  28o 

Story  V.  M.  Ins.  Co 4-d8,  4o9 

^       Mew  York  &H.R.  Co.,  242 

Wallace 554 

Story's  ex'rs  v.  Holcomb 582 

Stout  V.  Jackson o8o 

Sioux  City  &  Pac.  R.  Co. 

166,  184 

Prall Ill,  118,  4:31 

Stover  V.  BluehiU 132 

Stow  V.  Yarwood 122 

StoweU  V.  Bennett oto 

Lonsola 680 

Strader  v.  Marietta 168,  169 

Strasburgh  v.  W.  U.  Tel.  Co. . . .  3o4 

Strawbridge  v.  Turner o3 

Strawn  v.  Coargswell 287 

Streeper  V.  WiUiams ..    •  •  •  •  1* 

Street  v.  Chapman 256,  265,  27o 

Swain 286 

Streeter  v.  Rush 154 

Strett  V.  Launier 6  1 

Strogan  v.  Knowles • 32 

Strohan  v.  Detroit  etc.  R.  Co. . . .  318 

Strong  V.  Campbell 3o 

Strong DDb 

Struble  v.  Nordwift 69 

Strunk  v.  Ocheltree 617 

Stuart  V.  Martin 624 

Sturgess  v.  Bissell o22 

Sturges  V.  Keith •  •  •  6-jO 

Knapp 442,  444 

Sturtevant  v.  Phelps 3<5 

St.  John  V.  Am.  M.  L.  Ins.  Co. . 

Mayorof  N.  Y 

Van  Santvoort 

St.  Jo.  &  D.  C.  R.  Co.  V.  Chase.. 

St.  Louis  V.  Alexander 44o 

Bissell 3<8 

St.  Louis  &  Alt.  R.  Co.  V.  Dalby,    92 

St.  L.  etc.  R.  Co.  V.  Todd 518 

St.  Martin  v.  Des  Noyer obo 


St.  Paul  City  v.  Kuby 685 

St.  Peter's  Church  v.  Beach.  .24. 

Suffolk  F.  Ins.  Co.  v.  Boyden  .. .'  459 

Sullivan  v.  Railroad  Co 17b 

Un.  P.  R.  Co 491 

Summers  v.  Camden 40 

Sussex  Co.  M.  Ins.  Co.  v.  Wood- 

ruff 459 

Sutton  V.  Buck 311 

Clark 484 

Howard 148 

Page 385 

To\\iiof  Wauwoutosa..  173 
Suvdam V.  Jenkins. .  632,  633, 634, 
639,  640,  647,  649, 

650,  655.  660,  663 

Swafford  v.  Whipple 385 

Sweem  v.  Steele  . . .  58,  149.  152, 

406.  436,  437 
Sweeney  v.  Old  Colony  etc.  R.  Co., 

169,  177 
Sweetland  v.  I.  &  M.  Tel.  Co. . . 

357,  358 

Swett  V.  Dodge 195 

Patrick 38o 

Sprague 38o 

Swift  V.  Dickei-man 549 

Harriman 293 

.Oliver 630 


Symes  v 
Symonds  v.  Carter 


88 


469 
596 
325 
531 


Tabor  v.  Hudson 69 

Taft  V.  WilUams 44 

Tait  V.  Sherman 301 

Talbot  V.  Wliipple 600 

Talbutt  V.  Clark llf 

Tally  V.  Corrie -344 

Tamvaco  v.  Simpson 1-1 

TaiTley  v.  Blably Ho,  5o2 

Tarlton  v.  McGarley 54,  o92 

Tarpy  v.  Shepard 204 

Tarrant  v.  Webb 175 

Tavis  V.  Barger 694 

Tavoi-t  V.  Mitler 427 

Taylor  v.  Cai-penter 584,  587 

Colber 322 

Dunbar 45o 

Godfrey 547 

Gi-andT.  R.  C0....78,  341 

Hall 497 

Neri 4o 

Railway 67 

Sanford 133 

St.  Louis 40 

The  Governor 617 

West.  etc.  R.  Co 515 


Iviii 


CASES  CITED. 


PAGE 

Walker  v.  Maitlancl 456 

Martin 544,  545 

Moore..242,  400,  404,  408 

Post 134 

Swayzee 427 

Smith 26 

Wilson 25 

WalMn  V.  Hall 115,  116 

Wallace  v.  Clayton 319 

Finch 110 

Ins.  Co 457 

MaYorofN.Y.86,90,    91 

Saunders 319 

Tumlin 242 

Wren 268 

WaUerstein  v.  C.  Ins.  Co 450 

WaUis  V.  Cai-penter 138 

Dilley 443 

Wabath  v.  Redfield 521,  598 

Walsh  V.  Miss.  Yal.  Tr.  Co..  159, 

162,  173 

Walls  V.  Johnson 659 

Walterv.  Post 595 

Wetmore 651 

Chicago  etc.  R.  Co....  187 

Towers 304 

Waltham  v.  Weaver 114 

Walworth  v.  Pool 338 

Wamibold  v.  Schlicting' 202 

Wanamakerv.  Bowes.  .110,  441,  621 

Ward  V.  Benson 630 

Burr 233 

N.  Y.  C.  R.  Co.  323, 

335,  337 

Weeks 46 

Wardrobe  v.  Stage  Co.. .  .70,  91,  108 

Ware  v.  Cartloge 554 

Weatimall 268 

Warfield  v.  Walter 620 

Warren  v.  Cole 271,  619,  620 

Doolittle 671 

Franklin  Ins.  Co.  204,  449 

Wheeler 58 

Warner  v.  Erie  etc.  R.  Co. ...175,  177 

Mathews 665 

Robinson 692 

Shed 609 

Waring  V.  Ind.  F.  Ins.  Co 460 

Warring  v.  Mason 275 

Warwick  v.  Chase 153 

Warwicks  v.  Foucks 541 

Washburn  v.  Gould 577 

Washington  v.  Parks 443 

Planters  Bank..  194 
Wash.  &  N.  0.  Tel.  Co.  v.  Hobson  347 

Wasson  v.  Mitchell 616 

Waters  v.  Brown 126,  480 

L.  Ins.  Co 456 

Mon.F.  Ins.  Co 460 

Towers 238 


PAGE 

Waterman  v.  Frank 616 

Watson  V.  Ambergate  R.  Co. . . .  325 

Buch 115 

Lisbon  Bridge  Co 537 

Watt  V.  Potter 630 

Watts  V.  Fraser 113,  114,  551 

Sheppard....l38,  153,  154 

Weatherby  v.  Marsh 114 

Weaver  v.  Page 545,  685 

Ward 484 

Weber  v.  M.  &  E.  R.  Co 467 

Webbv.  Odell 270 

Portland  R.  Co 159 

Rome  W.  &0.  R.  Co..  48 

Webber  v.  Coussey 385 

Nicholas 544 

Wedonv.  Timbril 563 

Weeding  v.  Mason 700 

Wehle  V.  Haviland 624 

Weil  V.  Tyler 211 

Welch  v.  Anthony 671 

Board  of  Supervisors..  36 

Durand 66,  91 

Welden  v.  Buck 208 

Wellington  v.  Downer 509 

Welsh  V.  Lewis 613 

Wells,  Fargo  &  Co.v.  Van  Sickle  251 

Wells  V.  Selwood 256 

Sawyer 685 

Weltner  v.  Riggs 232 

Wemple  v.  Stewart 248 

Wenman  v.  Mohawk  Ins.  Co 195 

West  v.  Cutting 277 

Forest 53,472,  482,  534 

Martin 164 

Pritchard 233 

Steamboat  Berhn 320 

Wentworth 233,  633 

Westchester  R.  Co.  v.  McElwee 

180,  188 
Western  v.  Sharp.. 286,  298,  300, 

302,  e305 

Western  Bank  v.  Sherwood 438 

Western  College  of  Medicine  v. 

City  of  Cleveland 33 

Western  R.  Co.  v.  McElwee. . . .  325 

Western  Tr.  Co.  v.  HaU 357 

Western  Un.  Tel.  Co.  v.  Bucha- 
nan  357,  359 

Western  Un.  Tel.  Co.  v.  Graham 

356,  357 

Westfall  V.  Peacock 278 

Weston  V.  G.  T.  R.  Co 323,  337 

Wetherbee  v.  Green 652,  653 

Weymouth  v.  Chicago  etc.  R.  Co. 

6:33,  651,  665 

Wharton  v.  Cunningham 228 

Wlialon  V.  Aldrich. . .  .287,  323,  337 

Wheat  v.  Lowe.  .„. 481 

Wheatleyv.  Thorn 128 


CASES  CITED. 


lix 


PAGE 

Wlieaton  v.  N.  B.  &  M.  R.  Co.  381 

Peters 581 

"SVlieedon  v.  Fisk 277 

Whetlock  V.  Crew 393 

Whetmore  v.  Coats 282 

"Wheelock  v.   Boston   &  A.  R. 

Co ,-.  159 

Wheeler  v.  City  of  Cincinnati. . .     33 

Nesbit 544,  546,  548 

Provident  L.  Ins.  Co.  173 
Randall. 67,  272,  568  569 

Styles 405 

Westport 159,  173 

"Worcester 37 

Whetstone  v.  Colby 202 

Whipple  V.  Cumberland  Man.  Co. 
^^  680,  685 

Wliipple  V.  Walpole 25,    77 

Whistler  v.  Brag 209 

White  V.  Boulton 340 

Campbell 431,  558 

French 442 

Suttle 596 

Thompkins 211,  232 

Webb 311,  656 

Yazoo  City 40 

Whitaker  v.  Smnner 315,  611 

Whitehouse  v.  Atkinson . . .  648,  655 
Whiteside  V.  Jennings.. 58,  418,  419 
Whitbeck  v.  N.   Y.  C.   R.   Co. 

536,  594,  653 
Whitfield  V.  Whitfield. 630,  636, 

647,  649 

Westbrook 545 

Wliitford  V.  Pana.  R.  Co 501 

Whiting  V.  Davey 371 

Whitmore  v.  South  Boston  Iron 

Co 265,  275 

Wliitney  v.  Beckford 648 

Elmer 559 

Emmet 577 

Hill 421 

Sweet 77,    87 

Whittemore  v.  Cutter 577,  579 

Whitting  V.  Dewey 370 

Whitworth  v.  Carter 284 

Hart 194 

Wibert  V.  N.  Y.  &  E.  R.  Co 323 

Wiesenburgh  v.  City  of  Apple- 
ton 482 

Wiger  V.  Pennsylvania  R.  Co. . .  177 

Wiggetv.  Fox 175,  177 

Wiggins  V.  Coffin 685 

Wigmore  v.  Jay 175,  177,  516 

Wild  v.  Hud.  R.  R.  Co.l59,  160,  164 

Wilde  V.  Clarkson 151 

Wiley  V.  Belfast 46 

Frac.  Sch.  Dist.  No.  1,  298 

Fredericks 298 

Howard 395 


FAGB 

Wiley  V.  Keokuk 24,  68,  471 

Man-a-to-wah 24,  471 

Smitherman 25,  66,  597 

Wilcoxon  V.  Gateway 421 

Wilcox  V.  Iowa  Wes.  Univ.. 271,  566 

Parmelee 325 

Wilhelm  v.  Fimple 419 

Wilhoit  v.  Hancock 557 

Wilkins  v.  GUmore 597 

Wilson  V.  Brett 312 

Fitch 115,  117 

Forbes 367 

FuUer 566 

Goit 549 

Graham 301 

Halifax 32 

Hicks 700 

L.  &  Y.  R.  Co... 238, 

323,  337 

Little 314 

Mathews 633 

Mayor  etc 40 

McEvoy 443 

Middelton 106,  472 

Newcastle  R.  Co 323 

Noonan 551 

Raybould 424 

Spencer 406 

Strayhon 421 

Y.  &M.  R.  Co 518 

Wilson 375,  384 

Wilton  V.  Webster 563 

Willard  v.  Bridge 317 

Pinard 188 

Stone 434 

Twitchell 368 

Willets  V.  Buffalo  etc.  R.  Co. . . .  516 

Williams  v.  Archer 244 

Cameron 484 

Chicago  Coal  Co. . .  303 

Clinton 174 

Currie 87 

Dakin 154 

Green 139,  154 

Haines 367 

Jones 281 

Michigan  etc.  R  Co.  173 

Mostyn 682 

Real 108 

Reynolds 234,  238 

Rockwell 225 

Taylor 547 

Vanderbilt 343 

Woods 246 

Williamson  v.  Moore 277 

Test 386 

West.  Stage  Co.. 

24,  688 

Willis  V.  Barnard 563 

Forest 126,  475 


Ix 


CASES  CITED. 


PAGE 

Willitts  V.  Burgess 375,  376 

Winne  v.  lU.  Cent.  R.  Co. .  .320, 

329,  341 

Kelly 422 

Winship  v.  Enfield 164 

Winsmore  v.  Greenback 3,  562 

Winters  v.  Hannibal  etc.  R.  Co. .  534 

Winter  v.  Henn 563 

Wroot 563 

Wintlirop  v.  Carleton 195 

Wintz  V.  Morrison 258,  569 

Wintzel  v.  Robinson 445 

Wirting  v.  Nissley 369 

Witherow  v.  Witherow 254 

Withey  v.  Mumford 373 

Woert  V.  Jenkins 25,  89,  622 

Wolf  V.  Cohen 128 

H.  Ins.  Co 459 

Howes 289 

Lacy 329 

Studebaker 241 

Weiner 425 

W.U.Tel.  Co 359 

Wood  V.  Barber 68 

Barney 338 

Bell 242 

BuUens 201 

Davis 609 

Morewood 652 

M.  R.  Co 326 

U.  S 546 

Woodbome  v.  Scarborough 612 

Woodbum  v.  Cogdale 660 

Woodbury  v.  Jones 301 

Woodger  v.  Great  W.  R.  Co. . . .  238 

WoodhuU  V.  Wagner 207 

Woodman  v.  Nottingham 78,  86 

Woodson  V.  Scott 685,  686 

Woodward  v.  Bellamy 431 

Powers 264 

Thatcher 266,  572 

Wooton  V.  Reed 254 

Work  V.  Kellogg 648 

Workman  v.  Gt.  Nor.  R.  Co. . . .  600 

Wormer's  Case 135 

Worster  v.  Prop.  Can.  Br 685 

Worthen  v.  Wilmot. 248 

Worthington  v.  Warrinton 412 

Worthy  v.  Patterson 265,  275 


PAGE 

Wright  V.  Chamberlain 261 

Donnell 622 

Falkner 303 

Fhnin 571 

Gray 9,  52,  591 

lU.  etc.  Tel.  Co 160 

Maiden 175 

Pole 461 

Railroad  Co 176,  179 

Roach 570 

Schrceder 551 

Stone 680 

Wilcox 70 

Wyman  v.  Am.  Powder  Works.  629 

Ballard .385 

Cochran 1-53 

Wyndham  v.  Wycourt 561 


Yahola  etc.  Mining  Co.  v.  Isby. .  594 

Yale  V.  OHver 313 

Saunders 624 

Yarborough  v.  Nettles 619 

Yater  v.  Mullen 627 

Yates  V.  Dunster 426 

Joyce 614 

Lansing 616 

Reed 116,  485 

White 515 

Yeatman  v.  Dempsey 670 

Young  V.  Bennett 551 

Spencer 595,  682 

Stevens 277 

Lloyd 599.  653 

P.M.  Co 342 

Turing 451 

W.  U.  TeLCo 360 

White 139 

Willett&Bosw 659 

Yokum  V.  Thomas 368,  394,  396 

Youmans  v.  Padden 172 

z 

Zachery  v.  Swanger 150 

Zehner  v.  Dale 232 

Zerfing  v.  Mourer 118,  560 


THE  LAW  OF  DAMAGES. 


CHAPTEE  I 


DAMAGES— GE]S"EEAL  PRINCIPLES— ELEMEl^TS. 

Section  1.  Definition— Maxims—Theory. 

4.  Mode  of  Enforcing  Damages. 

5.  Importance  of  the  Subject. 

6.  Recent  Origin  of  much  of  the  Law  of  Damages. 

7.  Difficulty  of  framing  Rules ;  their  Inadequacy. 

8.  Rules  Arbitrary,  do  not  Secure  Indemnity. 

9.  The  most  Common  Rule  Defective. 

10.  The  Maxim,  causa  proxima.etc.  Considered. 

11.  Policy  of  Limitation  of  Liability. 

12.  Other  Rules,  Maxims  and  Doctrines. 

13.  Line  of  Limitation  Difficult  to  Determine. 

14.  Effect  of  the  Common  Law  Forms  of  Action. 

15.  Forms  of  Action  Abolished. 

16.  Legal  Reform. 

17.  Policy  of  Statutory  Regulations. 

18.  The  Anglo  Saxon  and  Jewish  Law. 

19.  Statutory  Provisions  for,  on  Contracts. 

20.  Circumstances  which  Affect  the  Amount  of,  etc. 

21.  Duty  of  the  Injured  Party  to  Protect  Himself. 

22.  Liquidated  Damages. 

23.  Matters  in  Aggravation  and  Mitigation. 

24.  When  the  Injured  Party  Contributes,  etc. 

25.  The  Motives  of  the  "Wrongdoer. 
1 


THE  LAW  OF  DAMAGES. 


Definitions— Maxims— Theory. 


26.  Controversy  as  to  the  Proper  Basis  of  Damages. 

27.  Law  and  Fact. 

28.  Illustrations. 

30.  Power  of  the  Court. 

31.  Rules,  Artificial  and  Arbitrary. 

32.  Elements,  Principles  and  Kules. 

33.  Treatment  of  the  Subject. 

§  1.  Definition— Maxims— Theory.— Damages  is  a  word 
that  lias  been  variously  defined,  as  "  the  estimated  reparation 
in  money  for  detriment  or  injury  sustained";'  "  every  loss  or 
diminution  of  what  is  a  man's  own  occasioned  by  the  fault 
of  another";"  "the  money  given  to  a  man  by  a  jury  as  com- 
pensation or  satisfaction  for  some  injury  sustained;  as  for  a 
battery,  for  false  imprisonment,  for  slander  or  for  trespass";^ 
"the  pecuniary  satisfaction  which  a  plaintiff  may  obtain  by 
success  in  an  action  "."  The  jDhraseology,  though  somewhat 
varied  in  form,  is  the  same  in  substance,  and  sufficiently 
indicates  the  compensation  or  indemnity  which  the  law  gives 
an  injured  party,  and  which  he  may  recover  of  the  wrongdoer. 

§  2.  It  is  a  familiar  maxim  of  the  law  that  wherever  the 
law  gives  anything  to  a  person,  it  also  gives  a  remedy  for  an 
injury  thereto ;  lex  semper  dahit  remedium/  that  there  is  no 
wrong  without  a  remedy;  uhijus  ibi  remedkiTYi.  If  a  person 
has  a  right  he  must  have  a  means  to  vindicate  and  maintain 
it,  and  a  remedy  if  he  is  injured  in  the  exercise  or  enjoyment 

'  "Webster's  Dictionary. 

»  Ruth.  Inst.  b.  1,  Ch.  17,  §  1,  p.  200,  Bait.  Ed.,  1832. 

3  2  Black.  Com.,  438.  The  reparation  or  satisfaction  which  is  due  from 
those  who  are  answerable  for  some  damage.  Domat.  Civ.  L.,  Part  1,  b.  3, 
T.  S.,  §  2.  The  Statutes  of  California  provide:  "  Every  person  who  suffers 
detriment  from  the  unlawful  act  or  omission  of  another,  may  recover  from 
the  person  in  fault  a  compensation  therefor  in  money,  which  is  called 
dama^'es."  Civ.  Code  Cal.,  Vol.  2,  p.  384,  §  3281  (1874).  The  Code  of 
California  makes  provision  for  and  furnishes  rules  for  damag-os,  in  a  great 
variety  of  cases,  which  we  shall  hereafter  more  particularly  notice.  See  x>ost, 
§  19,  note. 

*  Mayne  on  Dam.,  1.  * 


GENERAL  PEINCIPLES. 


Mode  of  Enforcing— Importance  of  Subject— Kecent  Origin,  etc. 

of  it.^  And  it  matters  not  whether  the  injury  is  to  property, 
person  or  reputation,  for  a  breach  of  contract  or  a  tort,  the 
party  injured  may  recover  of  the  wrongdoer  damages  there- 
for. 

§  3.  There  is  also  a  theory  of  the  law,  that  the  remedy  is 
commensurate  with  the  injury  sustained;"  that,  "compensa- 
tion should  be  equivalent  to  the  injury";'  and  "  that  whoever 
does  an  injury  to  another,  is  liable  in  damages  to  the  extent 
of  that  injury"."  But  this  complete  indemnity,  as  we  shall 
hereafter  notice,  is  seldom  fully  realized  by  the  injured 
party. 

§  4.  Mode  of  Euforcing  Damages.— The  mode  of  enforc- 
ing damages  from  a  wrongdoer,  is  by  action  or  suit  at  law;  for 
which  purpose,  at  common  law,  various  forms  of  action  were 
furnished;  and  under  these  different  forms  of  action,  but  the 
same  facts,  different  rules  were  applied  in  the  measure  of 
damages. 

§  5.  Importance  of  the  Subject. — From  the  foregoing 
statements,  the  great  importance  of  the  law  of  damages  will  be 
apparent.  The  principal,  if  not  the  sole,  object  of  every  action 
at  law,  whether  for  a  breach  of  contract,  or  for  a  tort,  is  the 
recovery  of  damages;  and  no  branch  of  the  law  is  of  more 
universal  use  and  application.' 

§  6.  Recent  Origin  of  mucli  of  the  Law  of  Damages.— 

There  is  a  familiar  theory  of  the  law,  that  the  courts  are  the 
interpreters  and  expounders  of  the  law  as  it  is;  but  a 
careful  study  of  the  growth  and  structure  of  many  branches 

s  Per  Holt,  C.  J.,  in  Ashby  v.  White,  2  Ld.  Raymond,  953  ;  Willes,  C.  J., 
in  Winsmore  v.  Greeribank,  Willes,  577.  "  Damages  may  be  awarded,  in  a 
judicial  proceedmg,  for  detriment  resulting  after  the  commencement  thereof 
or  certain  to  result  in  the  future."     Civ.  Code  Cal.,  p.  384,  §  3283. 

*  Rockwell  V.  Allen,  7  Mass.,  254. 

7  Shippen,  C.  J.,  in  Bussy  v.  Donaldson,  4  DalL,  206. 

^  Story,  J.,  in  Dexter  v.  Spear,  4  Mason,  115. 

9  3  Black.  Com.,  118. 


THE  LAW  OF  DAMAGES. 


Kecent  Origin  of  Much  of  the  Law  of  Damages. 


of  our  jurisprudence,  and  especially  tlie  law  of  damages,  must 
satisfy  the  inquirer  that  much  of  it  has  its  origin,  practically, 
in  judicial  decisions,  which  declare  not  always  so  much  what 
the  law  is,  as  what  it  ought  to  be,  and  shall  be. 

Much  of  the  law  of  damages  has  thus  originated  in  com- 
paratively recent  times,  and  might  properly  be  denominated 
modern  common  law;  for,  although  many  of  its  principles 
may  be  traced  to  the  ancient  civil  and  common  law,  a  large 
portion  of  it  is  the  result  of  modern  adjudications.  To  this 
there  can  be  no  serious  objection.  The  ancient  common  law 
was  but  a  recognition  by  the  courts,  of  rules  principles  and 
maxims,  which  received  their  assent  and  indorsement,  as 
founded  injustice  and  equity,  and  as  applicable  to  the  adjust- 
ment and  security  of  human  rights,  and  which  thereby  became 
a  part  of  the  common  law.  In  the  language  of  Sir  Mathew 
Hale,  the  common  law  "  is  not  the  product  of  the  wisdom  of 
some  one  man  or  society  of  men  in  any  one  age,  but  the 
counsel,  experience  and  wisdom  of  many  ages  of  wise  and 
observing  men".'  And,  as  we  are  greatly  indebted  to  the 
sound  judgment  and  comprehensive  views  of  Anglo  Saxon 
jurists  for  their  approval  of  those  sound  maxims  and  princi- 
ples, which  constitute  the  great  body  of  the  common  law,  and 
to  Koman  sages  for  the  cultured  elegance,  subtle  distinctions? 
flexible  refinements  and  equitable  principles  of  the  civil  law, 
we  are  not  less  so  to  our  modern  jurists  whose  broad  and 
liberal  culture,  enlightened  views,  comprehensive  wisdom, 
and  sound  judment,  have  contributed  so  much  to  the  structure 
of  our  modern,  and  especially  of  our  American,  jurisprudence. 
For  their  decisions  have  reflected  the  light  of  ancient  times, 
and  been  enriched  by  the  civilization,  the  science  and  the 
philosophy  of  the  present  time;  and  ancient  rules  and  maxims 
have  been  modified  and  applied  to  new  cases,  interests  and 
relations,  in  the  complicated  and  various  pursuits  of  modern 
commercial  life  and  activity. 

'  Preface  to  Rollc's  Abridgment. 


GENERAL  PRINCIPLES. 


Difficulty  of  Framing  Rules— Inadequacy  for  Indemnity. 

Our  modern  jurisprudence  thus  established,  may  be  fitly 
compared  to  a  modern  palace,  whose  gorgeous  architecture, 
grace  and  beauty, have  been  enhanced  by  fragments  from  crumb- 
ling Gothic  structures  of  the  Middle  Ages — from  once  graceful 
temples  of  ancient  Baalbec  and  Palmyra,  and  by  relics  of 
exhumed  cities  of  the  old  world — re-polished  and  re-fitted  into 
the  new  edifice,  the  old  material,  however,  forming  but  a  small 
portion  of  the  new  structure. 

§  7.  Difficulty  of  framing  Rules;  their  Inadequacy 
for  Indemnity. — It  is  found  a  difiicult  task  to  frame  rules 
relating  to  the  measure  of  damages,  based  upon  principles 
of  justice  and  equity,  that  shall  be  definite,  uniform  and  exact. 
Most  of  those  now  recognized  are  artificial  and  arbitrary;  hence 
we  find  great  conflicts,  contradictions  and  fluctuations,  in  the 
decisions  relating  to  the  same.  For  instance,  the  measure  of 
damages  on  a  breach  of  contract  for  the  payment  of  money,  is 
the  amount  agreed  to  be  paid,  with  interest;  the  measure  of 
damages  on  a  breach  of  the  covenant  of  seizin,  is  the  value  of 
the  land  at  the  time  of  the  conveyance,  and  which  is  pi'esumed 
to  be  the  amount  of  the  consideration  and  interest,  and  the 
costs  of  the  eviction  suit,  or  in  some  states  the  value  of  the 
land  at  the  time  of  the  eviction,  with  the  expenses  incurred  in 
defense  of  the  suit  for  the  eviction;  and  for  a  breach  of  war- 
ranty against  incumbrances,  the  damage  is  the  amount  paid 
to  remove  the  same,  with  interest,  and  perhaps  costs  of  suit 
in  any  reasonable  defense  against  the  incumbrance. 

Now,  it  often  occurs  that  the  principal  and  interest  as 
damages  for  the  non-payment  of  money  at  the  time  agreed, 
or  the  consideration  of  a  deed  in  case  of  a  breach  of  the  cove- 
nant of  seizin,  or  the  payment  of  the  money  advanced  to 
remove  an  incumbrance,  in  case  of  tlie  breach  of  covenant 
against  incumbrances,  is  an  inadequate  sum  to  fully  indemnify 
the  party  injured. 

Bj  reason  of  a  failure  to  receive  money  when  due,  a  person 


THE  LAW  OF  DAMAGES. 


KuJes  Arbitrary— Do  not  secure  Indemnitj'— Most  Common  Kule  Defective. 


may  fail  to  meet  his  pecuniary  engagements,  and  be  required 
to  pay  exorbitant  rates  of  interest;  or  he  may  fail  in  business, 
become  a  bankrupt,  and  thereby  be  reduced  from  opulence  to 
poverty.  And  so,  in  case  of  a  breach  of  the  covenant  of  seizin, 
or  of  title,  the  vendee  may  lose  valuable  improvements  he  has 
made  on  the  premises,  and  thereby  suffer  losses  and  pecuniary 
ruin,  for  which  the  common  rule  of  damages  affords  no  adequate 
indemnity,  except,  perhaps,  in  those  cases  where  the  rule  of 
the  value  of  the  land  at  the  time  of  the  eviction  prevails.  And, 
in  case  of  a  breach  of  contract  against  incumbrances,  it  may 
be  impossible  for  the  grantee  to  furnish  the  money  necessary 
to  remove  the  same,  and  the  expense  incurred  for  valuable 
improvements  may  therebj'  be  lost. 

§  8 .    Rules  Arbitrary— Do  not  secure  Indemnity.— 

These  rules  cannot  be  defended  as  rules  of  indemnity  to  the 
injured  party,  but  only  as  arbitrary  rules  of  convenience 
and  of  policy.  Practically,  the  injured  party  seldom  receives 
complete  indemnity.  For,  although  this  is  the  theory  of  the 
law,  it  fails  fully  to  reach  that  aimx.  This  imperfection  of  the 
remedy  is  such  that  frequently  it  amounts  only  to  a  division  of 
the  loss  by  determining  the  portion  which  must  be  borne 
by  the  offending  party,  and  that  which  must  be  borne  by  the 
injured  party .^ 

This  failure  of  complete  justice  is  another  evidence  of  the 
imperfection  of  human  institutions,  and  illustrates  the  diffi- 
culty of  practically  securing  more  than  proximate  justice. 
This  will  be  further  shown  as  we  proceed. 

§  9.  The  most  Common  Rule  Defective.— Tlie  most 
common  rule  in  relation  to  damages  is,  that  the  iminediate, 
and  not  the  remote,  cause  of  the  damage  is  to  be  regarded  in 
determining  the  liability.  In  other  words,  a  person  is  respon- 
sible only  when  he  is  the  proximate  cause  of  the  injury. 
Causa proxima  et  non  remota  spectatur  is  the  familiar  maxim, 

'  See  Domat.  Civ.  L.,  b.  3,  tit.  5,  Sec.  11,  §  2. 


GENERAL  PRmCIPLES. 


The  Maxim,  Causa  Proxima,  etc.,  Considered. 


so-called,  of  the  law  of  damages.  This,  however,  is  a  very 
indetinite  and  imperfect  rule  of  limitation  of  liability,  or 
fuide  to  indicate  the  injurious  consequence  of  a  wrongful  act, 
for  which  the  wrongdoer  is  responsible. 

§  10.  The  Maxim,  Causa  Proxima  et  iioii  Remota 
Spectatiir,  Considered.— Tliis  maxim  was  undoubtedly  the 
result  of  a  conception  of  the  necessity  of  some  rule  to  limit 
responsibility  in  such  cases,  and  the  difficulty  of  drawing  an 
arbitrary  line  of  limitation,  so  as  to  embrace  more  remote  con- 
sequences. Public  policy  seemed  to  require  some  limitation, 
and  apparent  necessity  limited  the  liability  to  the  natural,  direct 
or  proximate  result. 

To  trace  remote  effects  of  causes  would  often  be  a  difficult, 
if  not  an  impossible,  task.  It  would  require  an  infinite  mind. 
Each  cause  produces  results  that  in  turn,  alone  or  by  com- 
bination with  other  causes,  produces  other  effects,  and  so  ad 
infinitum.  It  is  a  subject  too  abstruse  and  complicated  for 
the  human  mind.'     In  the  quaint  language  of  Lord  Bacon :  "  It 

'  See  opinion,  ShaAv,  C.  J.,  in  Marble  v.  City  of  Worcester,  4  Gray,  395. 
In  the  case  last  cited  the  learned  judge  remarks:  "  The  whole  doctrine  of 
causation,  considered  in  itself  metaphysically,  is  of  profound  difficulty,  if  it 
may  not  be  said  of  mystery.  It  was  a  maxim,  we  believe  of  the  schoolmen, 
causa  causantis,  causa  est  causanti.  And  this  makes  the  chain  of  causation. 
by  successive  links,  endless.  And  this,  perhaps,  in  a  certain  sense,  is  true. 
Perhaps  no  event  can  occur,  which  may  be  considered  as  insulated  and  inde- 
pendent; every  event  is  the  effect  of  some  cause  or  combination  of  causes, 
and  in  its  turn  becomes  the  cause  of  many  ensuing  consequences,  more  or 
less  immediate  or  remote.  The  law,  however,  looks  to  a  practical  rule,  adapted 
to  the  rights  and  duties  of  aU  persons  in  society,  in  the  common  and  ordinary 
concerns  of  actual  and  real  life,  and  on  account  of  the  difficulty  of  unraveling 
a  combination  of  causes  and  of  tracing  each  result,  as  a  matter  of  fact,  to  its 
true,  real  and  efficient  cause,  the  law  has  adopted  the  nile,  before  stated,  of 
regarding  the  proximate,  and  not  the  remote,  cause  of  the  occurrence  which 
is  the  subject  of  inquiry." 

On  this  subject  Mr.  Bigelow  remarks :  "There  is  no  difficulty  with  those 
cases  in  which  the  chain  of  causation  runs  back  through  a  series  of  (albeit 
human)  machines.  The  law  permits,  or  rather  requires,  that  the  chain 
should  be  traced  back  to  him  who  set  in  motion  the  dangerous  element. 
This  has  been  settled  ever  since  Scott  v.  Shepherd,  3  Wils.,  403,  was  decided. 
This  was  the  case  of  the  lighted  squib  thrown  by  the  defendant  into  the 


THE  LAW  OF  DAMAGES. 


Limitation  of  Liability. 


were  infinite  for  the  law  to  consider  the  cause  of  causes,  and 
their  impulsion  one  upon  another;  therefore  it  contenteth 
itself  with  the  immediate  cause  and  judgeth  of  acts  by  that, 
without  looking  to  any  further  degree.'" 

The  maxim,  injure  non  remota  causa  sed  po-oxlma  specta- 
tur^  thus  paraphrased  by  Lord  Bacon,  although  in  common 
use,  we  shall  find  to  be  literally  disregarded,  as  a  limita- 
tion of  liability  or  a  rule  of  damages,  especially  in  torts; 
that  it  has  acquired  a  certain  technical  meaning;  and  that 
an  understanding  of  its  application  can  only  be  had  by  an 
examination  of  the  cases.  And  we  shall  also  find  that  it  has 
been  so  modified,  qualified  and  extended,  as  to  include,  many 
times,  consequences  very  remote  in  fact  from  the  original 
cause. 

§11.  Policy  of  a  Limitation  of  Liability .  —Both  pub- 
lic policy  and  necessity  seem  to  demand  a  limit  to  liability. 
If  there  was  no  limit  of  liability  in  such  cases,  the  responsi- 
bility would  tend  to  paralyze  the  activity  and  energy  of  those 

market  house  on  fair- day,  which  A.,  B.  and  C.  had  caught  up  convulsively, 
9,s  it  were,  from  their  booths  and  thrown  out,  until  it  at  last  struck  the 
plaintiff  in  the  eye.  *  *  *  "jij^g  language  of  Chief  Justice  DeGray 
is  often  cited :  *  The  throwing  of  the  squib  by  the  defendant, '  said  he,  '  was 
an  unlawful  act  at  common  law;  the  squib  had  a  natural  power  and  tendency 
to  do  mischief  indiscriminately,  but  what  mischief,  or  where  it  would  fall, 
none  could  know.  The  fault,  egreditur  e  persona,  of  him  who  threw  the 
squib.  It  would  naturally  produce  a  defense  to  be  made  by  every  person  in 
danger  of  being  hurt  thereby;  and  no  line  can  be  drawn  as  to  the  mischief 
likely  to  happen  to  any  person  in  such  danger.  *  *  *  j^o  VLi^n 
contracts  guilt  in  defending  himself ;  the  second  and  third  man  were  not 
guilty  of  any  trespass,  but  all  the  injury  was  done  by  the  prior  act  of  the 
defendant.  »  *  *  j  conceive  all  the  acts  of  throwing  the  squib  must 
be  considered  one  single  act,  namely,  the  act  of  the  defendant,  the  same  as 
if  it  had  been  a,  cracker  made  with  gunpowder  which  had  bounded  and 
re-bounded  again  and  again  before  it  had  struck  out  the  plaintiff's  eye.'  It 
follows,  of  course,  that  none  of  the  intermediate  persons  could  be  liable." 
liigrlow's  Leading  Cases,  L.  T.,  note,  p.  GOS,  where  many  cases  are  cited 
illustrating  the  subject. 

=■  Bac.  Max.  Reg.,  1;  Babcock  v.  Montgomery  Co.  Mut.  Ins.  Co.,  4  Comst., 
326. 


GENEKAL  PEIKCIPLES. 


other  Kules,  Maxims,  aud  Doctrines. 


engaged  in  the  various  pursuits  and  occupations  of  life.  The 
general  maxim  we  have  considered,  bj  its  letter,  limits  this  to 
the  proximate  or  immediate  result  of  the  wrong;  but  the 
courts  have  bj  their  construction,  as  we  have  noticed,  extended 
it  to  cover  more  remote  consequences — even  those  which  are 
part  of  a  "  chain  of  effects  "  resulting  from  the  wrong.^  This 
cause,  in  a  judicial  sense,  may  be  remote  so  long  as  the  causal 
connection  is  not  broken  by  the  interposition  of  another 
agency. 

§  12.  Other  Rules,  Maxims  and  Doctrines. — There 
are  other  rules,  maxims  and  doctrines,  which  seem  to  qualify 
the  maxim  we  have  been  considering,  and  extend  the  liability 
of  the  wrongdoer  to  more  remote  consequences.  Thus,  "  no 
WTongdoer  can  be  allowed  to  apportion  or  qualify  his  own 
wrong  ";^  "  every  person  who  does  a  wrong  is,  at  least,  respon- 
sible for  all  the  mischievous  consequences  that  may  reasonably 
be  expected  to  result  under  ordinary  circumstances  from  such 
misconduct";^  "a  man  who  officiously  presumes  to  interfere 
with,  or  make  use  of,  the  property  of  another,  without  his  per- 
mission, is  liable  for  all  the  consequences  of  such  interference, 
whether  he  intended  any  injury  or  not";°  "where  one  does 
an  illegal  or  mischievous  act  in  such  a  careless  and  improper 
manner  that  injury  to  a  third  person  may  probably  ensue,  he 
is  answerable  in  some  form  of  action  for  all  the  consequences 
which  may  directly  and  naturally  result  from  his  conduct";^ 

3  DeGrey,  C.  J.,  in  Scott  v.  Shepherd,  2  Wm.  Black.  R.  892.  See  also 
Vanderburgh  v.  Truax,  4  Denio,  464;  Fent  v.  Toledo,  etc.  R.  Co.,  59  111., 
349;  Atkinson,  etc.  R.  Co.  v.  Sanford,  12  Kans.,  354;  1  HiU  on  Torts,  85, 131. 
As  to  remote  Kability  of  one  who  is  the  causa  causans,  see  Mansfield,  C.  J., 
in  Wadham  V.  Marlow,  1  H.  Black.,  439,  and  note,  and  cases  cited;  Broom's 
Leg.  Max.,  p.  208,  et  seq. 

*  Tindal,  C.  J.,  in  Davis  v.  Gan-ett,  6  Bing.,  716. 

s  Pollock,  C.  B.,  in  Rigby  v.  Hewitt,  5  Exch.,  243.  See  also  Allison  v. 
Chandler,  11  Mich.,  542.^ 

6  Wright  V.  Gray,  2  Bay.,  464. 

7  Vandenburgh  v.  Truax,  supra,  and  other  cases  cited  in  note  3,  ante. 


10  THE  LAW  OF  DAMAGES. 

The  Line  of  Limitation  Difficult. 

"  where  the  consequences  of  an  unlawful  act  are  immediate, 
he  who  does  the  unlawful  act  is  considered  as  the  active  doer 
of  all  that  directly  follows";'  and  "where  two  j^arties  have 
made  a  contract  which  one  of  them  has  broken,  the  damages 
which  the  other  party  ought  to  receive  in  respect  to  such 
breach  of  contract,  should  be  such  as  may  fairly  and  reasonably 
be  considered  either  arising  naturally,  i.  e.,  according  to  the 
usual  course  of  things,  from  the  breach  of  the  contract  itself, 
or  such  as  may  reasonably  be  supposed  to  have  been  in  the 
contemplation  of  both  parties  at  the  time  they  made  the  con- 
tract, as  the  probable  result  of  a  breach  of  it.'" 

And  the  general  maxim  is  said  not  to  apply  "  to  any  trans- 
action originally  founded  in  fraud  or  covin ;  for  the  law  will 
look  to  the  corrupt  beginning  and  consider  it  as  one  entire 
act  according  to  the  principle — dolus  circuitu  non  jnirgatui' 
— fraud  is  not  purged  by  circuity.'" 

But  sufficient  has  been  presented  to  sliow  the  qualification 
and  extension  of  the  general  maxim.  We  shall  hereafter  con- 
sider it  more  fully  when  we  come  to  treat  of  damages  in  cases 
of  aggravated  torts. 

§  13.  The  Line  of  Limitation  Dilficult— The  subject 
of  causation  is  too  subtle  to  allow  any  definite  line  to  be 
drawn,  based  upon  principle,  as  a  certain  and  fixed  limit  of 
liability  in  all  cases.  It  is  impracticable  so  to  do.  But  there 
is  a  tendency  to  recognize  a  rule  on  this  subject  of  liability 
for  the  consequences  of  a  wrong,  somewhat  flexible  and  elastic; 
varying  in  cases  of  torts,  as  we  shall  have  occasion  to  notice 
more  fully  hereafter,  with  the  motives  of  the  wrong(ber,  and 
covering  more  or  less  extended  and  remote  consequences, 
depending  on  the  character,  grade,  or  degree  of  the  wrong 
done. 


8  Burdick  v.  Worrall,  4  Barb.  (N.  Y.),  596;  1  HiU.  on  Torts,  85. 

9  Hadlcy  v.  Baxendale,  9  Exch.,  341. 
»  Broom's  Leg.  Max.,  228. 


GENERAL  PRINCIPLES.  11 

Common  Law  Forms  -Forms  of  Action  Abolished. 

§  14.    Effect  of  the  Common  Law  Forms  of  Action.— 

The  technicalities  of  the  common  law  forms  of  action  have 
prevented  the  application  of  nniform  rules,  as  before  stated, 
to  the  measure  of  damages.  Thus,  in  the  action  of  trover,  the 
measure  of  damages  was  the  value  of  the  property  at  the  time 
of  the  conversion;  while  in  trespass,  not  only  the  value  of  the 
property  might  be  recovered,  but  damages  for  the  taking  and 
deprivation  of  the  use  of  the  same,  and  even  exemplary  dama- 
ges, where  the  taking  was  under  circumstances  of  outrage, 
insult  or  oppression.  In  assumpsit,  the  plaintilf  could  only 
recover  the  amount  received  on  a  sale  of  the  jDroperty  wrong- 
fully taken  or  converted  by  the  wrongdoer.  The  facts  in 
each  case  might  be  the  same,  and  still  the  damages  in  each 
action  diiferent;  nor  could  these  several  causes  of  action  be 
united  in  one,  and  the  plaintiff  claim  the  benefit  of  either  or 
all  on  the  same  facts,  in  a  single  action. 

§  15.  Forms  of  Action  Abolished.— These  forms,  with 
all  their  technicalities,  now  fortunately  prevail  in  onlj'  a  few 
of  the  States  of  the  Union,  and  we  may  reasonably  expect 
that  the  'success  which  has  attended  the  abolition  of  them,  and 
of  the  common  law  modes  of  procedure  in  many  states,  will 
load  others  to  follow  the  example  thus  set,  and  that  in  a  short 
time  the  legal  fictions  and  technicalities  connected  with  actions 
at  common  law  will  be  entirely  abolished  throughout  the 
Union,  and  instead  thereof  there  will  be  substituted,  as  now 
in  many  states,  a  right  of  action  based  on  the  facts  of  the 
case,  in  which  the  party  seeking  a  remedy  in  court  will  only 
be  required  to  set  forth  the  facts  entitling  him  thereto,  and 
on  the  proof  thereof  he  will  secure  the  remedy  which  he 
may  justly  claim  without  the  hazard  of  choosing  between 
the  different  forms  of  action  the  one  most  beneficial  to  him, 
or  the  liability  of  loss,  arising  from  a  mistake  in  his  choice, 
owing  to  the  different  rules  for  the  measure  of  damages  in  the 
different  actions  at  common  law. 


12  THE  LAW  OF  DAMAGES. 


Legal  Keform— Statutory  Regulation. 


§  16.  Legal  Reform. — It  is  not  strictly  witliin  the  scope 
of  tliis  treatise  to  discuss  tlie  policy  of  legal  reforms,  but  the 
author  feels  justified  in  making  a  brief  allusion  to  it.  The 
current  of  opinion,  both  in  this  country  and  in  England,  is 
strongly  set  in  that  direction.  Since  1848,  when  New  York 
adopted  a  code  of  procedure  and  abolished  the  common  law 
forms,  other  states  have  followed  in  rapid  succession  until 
nearly  all  the  states  and  territories  have,  either  wholly  or  par- 
tially, adopted  codes  and  discarded  the  technicalities  of  the 
common  law  forms.  In  view  of  this  fact,  it  will  be  the  aim 
of  the  author  to  consider  rules  an4_  princij^les  of  damages 
mainly  with  reference  to  facts,  and  to  assist  in  tlie  application 
of  the  same  to  substantial  rights,  rather  than  to  these  facts 
and  rights  as  affected  by  the  common  law  forms  of  action. 

§17.  Policy  of  Statutory  Regulation— It  should  not 
be  surprising  that  there  is  a  great  want  of  uniformity  of  rules 
of  damages  in  different  states  and  countries,  or  that  there  is 
frequently  a  wide  difference  in  the  verdicts  of  juries  on  the 
same  state  of  facts.  The  diversity  in  the  rules  is  largely  owing 
to  the  fact  that  these  rules,  from  the  necessity  of  the  case,  are 
artificial  and  arbitrary.  They  are  adopted,  frequently,  as 
approximations  to  justice,  and  as  being  desirable  for  uniformity 
in  the  particular  locality,  and  not  from  the  sense  of  their 
being  based  on  absolute  justice  or  universal  principles.  The 
diversity  in  verdicts  is  the  result  of  a  great  variety  of  causes 
— passion,  prejudice  and  the  ordinary  frailties  of  human 
nature,  will  largely  account  for  the  many  wide  differences. 
This  has  been  the  prolific  source  of  embarrassment  and  uncer- 
tainty, and  suggests  the  importance  of  statutory  enactments 
on  the  subject.  A  uniform  measure  of  damages  under  the 
same  substantial  state  of  facts  is  desirable,  even  though  the 
rule  therefor  may  be  arbitrary.  The  Tnaximum,  if  not  the 
minimum  amount  could,  especially  in  many  torts,  be  fixed 
in  this  way  with  profitable  results. 


GENERAL  PEINCIPLES.  13 

Anglo  Saxon  and  Jewish  Law. 

Without  such  a  limit  the  necessary  discretion  given  to  the 
jury  in  cases  of  torts  will  many  times  result  in  trifling  or 
extravagant  verdicts,  and  largely  varying  ones  on  the  same 
state  of  tacts.  Their  discretion  in  such  cases,  as  to  the  amount 
of  damages,  is  almost  unlimited;  and  the  only  remedy  for 
excessive  verdicts  is  the  power  of  the  court  to  set  them  aside 
where  it  is  evident  that  they  are  the  result  of  passion,  preju- 
dice, corruption,  partiality  or  mistake.' 

A  limit  to  damages  might  be  fixed,  especially  in  actions  for 
injuries  to  the  person  or  character,  and  at  the  same  time  allow 
some  latitude  to  the  jury  in  fixing  the  amount.  This  has 
already  been  accomplished  in  England  and  in  many  of  the 
States  of  the  Union,  in  reference  to  injuries  resulting  in  death, 
the  maximum  limit  in  such  cases  varying  from  $3,000  to 
810,000.  If  it  is  desirable  thus  to  limit  the  damages  in  cases 
of  injury  resulting  in  death,  there  would  appear  to  be  no 
reason  why  it  might  not  be  thus  limited  in  case  of  the  loss  of 
a  foot,  or  an  arm,  or  an  eye,  or  graduated  according  to  the 
degree  of  disability  to  perform  labor,  as  in  cases  of  jDensions. 

§  1 8.  The  Anglo  Staxon  and  Jewish  Law.— According 
to  Palgrave,  the  early  Anglo  Saxon  Code  contained  minute 
provisions  fixing  the  amount  of  damages  for  various  offenses, 
such  as  cutting  off"  an  ear,  destroying  a  tooth,  finger,  nail,  or 
toe.^  So,  also,  rude  provisions  may  be  found  in  the  Jewish  Law 
fixing  the  amount  of  damages  for  particular  injuries;^  and  at 
least  a  faint  recognition  of  the  doctrine  of  more  extended 
liability,  for  wrongs  willfully  done  or  permitted  to  be  done,  or 
where  the  injury  was  the  result  of  gross  negligence,  or  where 
the  wrong  was  of  an  aggravated  character.'* 


'  2  Greenl.  Ev.,  §  255.    See  also,  post,  Ch,  37. 
=  Pal.  His.,  2Vol.,  107. 

3  Bible,  Exodus,  Chap.  21,  22. 

4  Bible,  Exodus,  Chap.  21,  Verses  35,  36. 


14  THE  LAW  OF  DAMAGES. 


statutory  Provisions. 


§  1 9.  Statutory  Provisions  for  the  Amount  of  Dama- 
ges on  Contracts.— Many  states  have  provided  by  statute 
for  damages  to  be  be  allowed  and  paid  on  the  non-acceptance 
or  non-payment  of  bills  of  exchange.  But  provisions  of  this 
character  generally  constitute  the  extent  of  the  statutory  pro- 
visions, of  most  of  the  states,  in  reference  to  damages  on  con- 
tracts. It  is  probable  that  the  amount  of  damages  for  a  breach 
of  contract  in  many  other  cases  might  be  made,  to  the  great 
advantage  of  the  public." 


s  Civil  Code  of  Lousiana,  1866.  The  State  of  Louisiana  is  an  exception  to 
the  general  rule.  The  Code  of  that  State,  to  a  large  extent,  regulates  the 
subject  of  damages  in  actions  on  contracts.     It  provides  as  follows : 

"Art.  1928.  Where  the  object  of  the  contract  is  anything  but  the  payment 
of  money,  the  damages  due  the  creditor  for  its  breach  are  the  amount  of  loss 
he  has  sustained,  and  the  profit  of  which  he  has  been  deprived  under  the 
following  exceptions  and  modifications  : 

1 .  Where  the  debtor  has  been  guilty  of  no  fraud  or  bad  faith,  he  is  liable 
for  such  damages  as  were  contemplated  or  may  reasonably  be  supposed  to 
have  entered  into  the  contemplation  of  the  parties  at  the  time  of  the  con- 
tract. By  bad  faith  in  this  and  the  next  rule,  is  not  meant  the  mere  breach 
of  faith  in  not  complying  with  the  contract,  but  a  designed  breach  of  it  from 
some  motive  of  interest  or  ill  will. 

2.  When  the  inexecution  of  the  contract  has  proceeded  from  fraud  or  bad 
faith,  the  debtor  shall  not  only  be  liable  for  such  damages  as  were  or  might 
have  been  foreseen  at  the  time  of  making  the  contract,  but  also  to  such  as 
are  the  immediate  and  direct  consequence  of  the  breach  of  that  contract; 
but  even  where  there  is  fraud  the  damages  cannot  exceed  this. 

3.  Although  the  general  rule  is  that  damages  are  the  amount  of  the  loss 
the  creditor  has  sustained,  or  of  the  gain  of  which  he  has  been  deprived,  yet 
there  are  cases  in  which  damages  may  be  assessed  without  calculating 
altogether  on  the  pecuniaiy  loss  or  the  privation  of  pecuniary  gain  to  the 
party.  Where  the  contract  has  for  its  object  the  gratification  of  some  intel- 
lectual enjoyment,  whether  in  religion,  morality  or  taste,  or  some  conven- 
ience or  other  legal  gratification,  although  these  are  not  appreciated  in 
money  by  the  parties,  yet  damages  are  due  for  their  breach;  a  contract  for  a 
religious  or  charitable  foundation,  a  promise  of  marriage,  or  an  engagement 
for  a  work  of  some  of  the  fine  arts,  are  objects  and  examples  of  this  rule. 
In  the  assessment  of  damages  under  this  rule,  as  well  as  in  offenses,  quasi 
offenses  and  quasi  contracts,  much  discretion  must  be  left  to  the  judge  or 
jury,  while  in  other  cases  they  have  none,  but  are  bound  to  give  such  dama- 
ges under  the  above  rules  as  will  fully  indemnify  the  creditor,  whenever 


GENEEAL  PRINCIPLES.  15 

Circumstances  which  AfEect  Amount  of  Damages. 

§  20.  Circumstances  which  Affect  the  Amount  of 
Damages  and  the  Right  to  Recover.— There  are  other 
principles  which  affect  not  only  the  amount  of  damages  but 

the  contract  has  been  broken  by  the  fault,  neg-lig^ence  or  bad  faith  of  the 
debtor. 

4.  If  the  creditor  be  guilty  of  any  bad  faith  which  retards  or  prevents  the 
execution  of  the  contract,  or  if,  at  the  time  of  making'  it,  he  knew  of  any 
facts  that  must  prevent  or  delay  its  performance,  and  concealed  them  from 
the  debtor,  he  is  not  entitled  to  damages. 

5.  Where  the  parties,  by  their  contract,  have  determined  the  sum  that 
shall  be  paid  as  damages  for  its  breach,  the  creditor  must  recover  that  sum, 
but  is  not  entitled  to  more.  But  when  the  contract  is  not  executed  in  part, 
the  damages  agreed  on  by  the  parties  may  be  reduced  to  the  loss  really 
suffered,  and  the  gain  of  which  the  party  has  been  deprived,  unless  there 
has  Ijeen  an  express  agreement  that  the  sum  fixed  by  the  contract  shall  be 
paid,  even  on  a  partial  breach  of  the  agreement."  [See  Ryder  v.  Thayer,  3 
La.,  149;  Arrowsmith  v.  Gordon,  Id.,  105;  Porter  v.  Barrow,  Id.,  140.] 

Since  the  text  on  the  subject  of  statutory  regulation  of  damages  was  writ- 
ten, the  author  has  had  access  to  the  Code  of  California  of  1872,  as  annotated 
by  Haymond  and  Burch  (1874).  This  Code  provides,  in  great  detail,  rules 
for  the  assessment  of  damages  in  a  great  variety  of  cases,  both  on  contract 
and  for  tort,  and  fully  confirms  the  views  of  the  author  as  to  the  possibility 
of  such  provisions.  These  provisions  are  mainly  a  declaiution  of  the  com- 
mon law  as  to  the  rules  of  damages  applicable  to  particular  cases,  but  they 
are  not  confined  to  the  generally  received  doctrines  of  the  common  law  in 
the  various  cases  provided  for;  and  they  certainly  make  definite  and  certain 
many  questions  on  which  there  is  a  diversity  of  opinion.  In  this  respect 
California  deserves  the  credit  of  inaugurating  a  reform  which  will,  by  reason 
of  its  palpable  advantages  and  certain  favorable  practical  results,  commend 
it  to  her  sister  states;  and  the  time  is  not  distant  when  this  policy  will  be 
generally,  if  not  universally,  adopted.  Among  many  provisions  of  the  Code 
of  that  State  relating  to  damages,  maybe  found  the  following: 

"§3282.   Detriment  is  a  loss  or  harm  suffered  in  person  or  property."  *  * 

"  §  3294.  In  any  action  for  the  breach  of  an  obhgation,  not  arising  from 
contract,  where  the  defendant  has  been  guilty  of  oppression,  fraud  or  malice, 
actual  or  presumed,  the  jury,  in  addition  to  the  actual  damages,  may  give 
damages  for  the  sake  of  example,  and  by  way  of  punishing  the  defendant." 

"§3300.  For  the  breach  of  an  obligation  arising  from  contract,  the 
measure  of  damages,  except  where  otherwise  expressly  provided  by  this 
Code,  is  the  amount  which  will  compensate  the  party  aggrieved  for  all  the 
detriment  proximately  caused  thereby,  of  which  the  party  in  fault  had  notice 
at  the  time  of  entering  into  the  contract,  or  at  any  time  before  the  breach, 
and  while  it  was  in  his  power  to  perform  the  contract  upon  his  part,  would 


16  THE  LAW  OF  DAMAGES. 

Circumstances  which  Affect  Amount  of  Damages. 

also  the  right  of  recov^ery;  such  as  the  duty  of  the  injured 
party  to  use  ordinary  efforts  and  reasonable  means  to  protect 
himself  from  the  consequences  of  a  wrongful  act  of  another; 

be  likely  to  result  from  such  breach,  or  which,  in  the  orJinaiy  course  of  thingf?, 
•would  be  likely  to  result  therefrom. 

' '  §  3301 .  No  damaj^es  can  be  recovered  for  a  breach  of  contract  which 
are  not  clearly  ascertainable  in  both  their  nature  and  origin. 

"  §  3302.  The  detriment  caused  by  a  breach  of  an  obligation  to  pay 
money  is  deemed  to  be  the  amount  due  by  the  temis  of  obligation,  with  in- 
terest thereon. 

' '  §  3303.  For  the  dishonor  of  foreign  bills  of  exchange  the  damages  are 
prescribed  by  sections  3235,  3237,  3238. 

"  §  3304.  The  detriment  caused  by  the  breach  of  a  covenant  of  '  seizin', 
of 'x'ight  to  convey',  of  'warranty',  or  of  '  quiet  enjoyment',  in  a  grant  of 
an  estate  of  real  property,  is  deemed  to  be  :  1.  The  price  paid  to  the 
grantor;  or  if  the  breach  is  partial  only,  such  proportion  of  the  price  as  the 
value  of  the  property  afi'ected  by  the  breach  bore  at  the  time  of  the  grant  to 
the  value  of  the  whole  property.  2.  Interest  thereon  for  the  time  during 
which  the  grantee  derived  no  benefit  from  the  property,  not  exceeding  five 
years.  3.  Any  expenses  properly  incurred  by  the  covenantee  in  defending 
his  possession. 

"  §  3305.  The  detriment  caused  by  a  breach  of  covenant  against  incum- 
brances in  a  grant  of  an  estate  in  real  property,  is  deemed  to  be  the  amount 
which  has  been  actually  expended  by  the  covenantee  in  extinguishing  either 
the  principal  or  interest  thereof,  not  exceeding  in  the  former  case  a  propor- 
tion of  the  price  paid  to  the  grantor  equivalent  to  the  relative  value  at  the 
time  of  the  grant  of  the  property  affected  by  the  breach,  as  compared  with 
the  whole,  or  in  the  latter  case  interest  on  a  like  amount. 

"  §  3306.  The  detriment  caused  by  the  breach  of  an  agreement  to  convey 
an  estate  in  real  property,  is  deemed  to  be  the  price  paid,  and  the  expenses 
properly  incurred  in  examining  the  title  and  peparing  the  necessary  papers, 
with  interest  thereon;  but  adding  thereto  in  case  of  bad  faith  the  difference 
between  the  pi-ice  agreed  to  be  paid  and  the  value  of  the  estate  agreed  to  be 
conveyed  at  the  time  of  the  breach,  and  the  expenses  properly  incurred  in 
preparing  to  enter  upon  the  land. 

"  §  3307.  The  detriment  caused  by  the  breach  of  an  agreement  to  pur- 
chase an  estate  in  real  property  is  deemed  to  be  the  excess,  if  any,  of  the 
amount  which  would  have  been  due  the  seller,  under  the  contract,  over  the 
value  of  the  land  to  him. 

"  §  3308.  The  detriment  caused  by  the  breach  of  a  seller's  agreement  to 
deliver  personal  property,  the  price  of  which  has  not  been  fully  paid  in  ad- 
vance, is  deemed  to  be  the  excess,  if  any,  of  the  value  of  the  property  to  the 
buyer,  over  the  amount  which  would  have  been  due  the  seller  under  the 
contract,  if  it  had  been  fulfilled. 


GE^^EPvAL  PRINCIPLES.  17 

Circumstances  which  Affect  Amount  of  Damages. 

a  Stipulation  of  the  parties  with  reference  to  the  amount  of 
damages;  or  tlie  doing  of  a  wrongful  act  under  circumstances 
of  outrage,  aggravation,  insult  or  oppression;  or  the  perform- 

"  §  3309.  The  detriment  caused  by  the  breach  of  a  seller's  agreement  to 
deliver  personal  property,  the  price  of  which  has  been  fully  paid  to  him  in 
advance,  is  deemed  to  be  the  same  as  in  case  of  a  wrongful  conversion. 

"  §  3310.  The  detriment  caused  by  the  breach  of  a  buyer's  agreement  to 
accept  and  pay  for  personal  property,  the  title  to  which  is  vested  in  him,  is 
deemed  to  be  the  contract  price. 

"  §  3311 .  The  detriment  caused  by  the  breach  of  a  buyer's  agreement  to 
accept  and  pay  for  personal  property,  the  title  to  which  is  not  vested  in  him, 
is  deemed  to  be:  1.  If  the  property  has  been  re-sold,  pursuant  to  section 
3049  [relating  to  the  lien  of  a  seller  of  personal  property],  the  excess,  if  any, 
of  the  amount  due  from  the  buyer,  under  the  contract,  over  the  net  proceeds 
of  the  re-sale;  or,  2.  If  the  property  has  not  been  re-sold  in  the  manner 
prescribed  by  section  3049,  the  excess,  if  any.  of  the  amount  due  from  the 
buyer,  under  the  contract,  over  the  value  to  the  seller,  together  with  the 
excess,  if  any,  of  the  expenses  properly  incurred  in  carrying  the  property  to 
market,  over  those  which  would  have  been  incurred  for  the  carriage  thereof, 
if  the  buyer  had  accepted  it. 

"  §  3312.  The  detriment  caused  by  the  breach  of  a  warranty  of  title  of 
personal  property  sold,  is  deemed  to  be  the  value  thereof  to  the  buyer,  when 
he  is  deprived  of  its  possession,  together  with  any  costs  which  he  has  become 
liable  to  pay  in  an  action  brought  for  the  property  by  the  true  owner. 

' '  §  3313.  The  detriment  caused  by  the  breach  of  a  warranty  of  the  quality 
of  personal  property  is  deemed  to  be  the  excess,  if  any,  of  the  value  which 
the  property  would  have  had  at  the  time  to  which  the  warranty  referred,  if 
it  had  been  complied  with,  over  its  actual  value  at  the  time. 

"  §  3314.  The  detriment  caused  by  the  breach  of  a  warranty  of  the  fit- 
ness of  an  article  of  personal  property  for  &,  particular  purpose,  is  deemed  to 
be  that  which  is  defined  by  the  last  section,  together  with  a  fair  compen- 
sation for  the  loss  incurred  by  an  effort  in  good  faith  to  use  it  for  such 
purpose. 

"  §  3315.  The  detriment  caused  by  the  breach  of  a  carrier's  obligation  to 
accept  freight,  messages  or  passengers,  is  deemed  to  be  the  difference  be- 
tween the  amount  which  he  had  a  right  to  charge  for  the  cai-riage  and  the 
amount  which  it  would  be  necessary  to  pay  for  the  same  ser\ace  when  it 
ought  to  be  performed. 

"  §  3316.  The  detriment  caused  by  the  breach  of  a  earner's  obligation  to 
deliver  freight,  where  he  has  not  converted  it  to  his  own  use,  is  deemed  to 
be  the  value  thereof  at  the  place  and  on  the  day  on  which  it  should  have 
been  delivered,  deducting  the  freightage  to  which  he  would  have  been  en- 
titled if  he  had  completed  the  delivery. 

"§3317.    The  detriment  caused  by  a  carrier's  delay  in  the  delivery  of 
2 


18  THE. LAW  OF  DAMAGES. 

Circumstances  which  Affect  Amount  of  Damages. 

ance  of  a  duty  in  a  grossly  negligent  manner  whereby  injury 
results  to  another;  or  material  contribution  to  the  injury  by 
the  party  injured. 


freight,  is  deemed  to  be  the  depreciation  in  the  intrinsic  value  of  the  freight 
during  the  delay,  and  also  the  depreciation,  if  any,  in  the  market  value 
thereof,  otherwise  than  by  reason  of  a  depreciation  in  its  intrinsic  value  at 
the  place  where  it  ought  to  have  been  delivered,  and  between  the  day  it 
ought  to  have  been  delivered  and  the  day  of  its  actual  delivery. 

* '  §  3318.  The  detriment  caused  by  the  breach  of  a  warranty  of  an  agent's 
authority,  is  deemed  to  be  the  amount  which  could  have  been  recovered  and 
collected  from  his  piincipal,  if  the  warranty  had  been  complied  with,  and 
the  reasonable  expenses  of  legal  proceedings  taken,  in  good  faith,  to  enforce 
the  act  of  the  agent  against  his  principal. 

"  §  3319.  The  damages  for  a  breach  of  a  promise  of  marriage  rest  in  the 
sound  discretion  of  the  jury." 

"§3333.  For  the  breach  of  an  obligation  not  arising  from  Contract,  the 
measure  of  damages,  except  where  otherwise  expressly  provided  by  this 
Code,  is  the  amount  which  will  compensate  for  all  the  detriment  proximately 
caused  thereby,  whether  it  could  have  been  anticipated  or  not. 

"  §  3334.  The  detriment  caused  by  the  wrongful  occupation  of  real  prop- 
erty, in  cases  not  embraced  in  sections  3335,  3344  and  3345  of  this  Code 
[the  last  two  sections  relating  to  tenants  wrongfully  holding  over],  or  sec- 
tion 1174  of  the  Code  of  Civil  Procedure  [relating  to  treble  damages  in 
certain  cases],  is  deemed  to  be  the  value  of  the  use  of  the  property  for  the 
time  of  such  occupation,  not  exceeding  five  years  next  preceding  the  com- 
mencement of  the  action  or  proceeding  to  enforce  the  right  to  damages, 
and  the  costs,  if  any,  of  recovering  the  possession." 

"  §  3336.  The  detriment  caused  by  the  wrongful  conversion  of  personal 
property  is  presumed  to  be :  1 .  The  value  of  the  property  at  the  time  of  the 
conversion,  with  interest  from  that  time,  or,  where  the  action  has  been 
prosecuted  with  reasonable  diligence,  the  highest  market  value  of  the  prop- 
erty at  any  time  between  the  conversion  and  the  verdict,  without  interest,  at 
the  option  of  the  injured  party;  and,  2.  A  fair  compensation  for  the  time 
and  money  properly  expended  in  pursuit  of  the  property." 

"§3:340.  For  wrongful  injuries  to  animals  being  subjects  of  property, 
committed  willfully  or  by  gross  negligence,  in  disregard  of  humanity,  exem- 
plary damages  may  be  given." 

"  §  3353.  In  estimating  damages  the  value  of  the  property  to  a  seller 
thereof  is  deemed  to  be  the  price  which  he  could  have  obtained  therefor  in 
the  market  nearest  the  place  at  which  it  should  have  been  accepted  by  the 
buyer,  and  at  such  time  after  the  breach  of  the  contract  as  would  have  suf- 
ficed, with  reasonable  diligence,  for  the  seller  to  effect  a  re-sale." 

"  §  3354.  In  estimating  damages,  except  as  provided  by  sections  3355  and 
3356,  the  value  of  property  to  a  buyer  or  owner  thereof,  deprived  of  its  pos- 


GENERAL  PRINCIPLES.  19 

Duty  of  Injured  Party  to  Protect  Himself. 
-  =5 

§  21.    Duty  of  the  Injured  Party  to  Protect  Himself. 

— It  is  the  duty  of  a  party  to  protect  himself  from  the  injuri- 
ons  consequences  of  the  wrongful  act  of  another,  if  he  can  do 

session,  is  deemed  to  be  the  price  at  which  he  might  have  bought  an  equiv- 
alent thing  in  the  market  nearest  to  the  place  where  the  propei-ty  ought  to 
have  been  put  into  his  possession,  and  at  such  time  after  the  breach  of  duty 
upon  which  his  right  to  damages  is  founded,  as  would  suffice  with  reasonable 
diUgence  for  him  to  make  such  a  purchase. 

"  §  3355.  Whe'-e  certain  property  has  a  peculiar  value  to  a  person  recov- 
ering damages  for  deprivation  thereof,  or  injury  thereto,  that  may  be 
deemed  its  value  against  one  who  had  notice  thereof  before  incurring  a 
liability  to  damages  in  respect  thereof,  or  against  a  willful  wi-ongdoer. 

"  §  3356.  For  the  pui-pose  of  estimating  damages,  the  value  of  a  thing  in 
action  is  presumed  to  be  equal  to  that  of  the  property  to  which  it  entitles  its 
owner. 

"  §  8357.  The  damages  prescribed  by  this  chapter  are  exclusive  of  exem- 
plary damages  and  interest,  except  where  those  are  expressly  mentioned." 

"  §  3359.  Damages  must  in  aU  cases  be  reasonable,  and  where  an  obK- 
gation  of  any  kind  appears  to  create  a  right  to  unconscionable  and  grossly 
oppressive  damages,  contrary  to  substantial  justice,  no  more  than  reasonable 
damages  can  be  recovered. 

' '  §  3360.  When  a  breach  of  duty  has  caused  no  appreciable  detriment  to 
the  party  affected,  he  may  yet  recover  nominal  damages." 

A  valuable  and  interesting  paper  presented  by  David  Dudley  Field,  Esq., 
the  great  law  reformer,  to  the  Association  for  the  Reform  and  Codification 
of  the  Law  of  Nations,  contains  so  many  valuable  suggestions  in  reference 
to  this  subject,  in  connection  with  greater  safety  at  sea,  and  in  reference  to 
International  Tribunals  for  the  determination  of  questions  in  cases  of  col- 
lisions, that  we  cannot  resist  the  desire  of  here  referring  to  it.     He  says: 

"In  the  present  state  of  the  arts  of  constructing  and  navigating  ships,  it 
may  be  laid  down  as  a  fundamental  proposition,  that  a  loss  at  sea  by  col- 
lision, or  otherwise,  can  hardly  occur  but  through  negligence.  The  problem 
is  how  to  prevent  this  negligence.  To  prevent  it  stricter  rules  must  be  pre- 
scribed, and  adequate  penalties  inflicted  for  violating  them.  "What  should 
be  these  rules,  and  how  should  the  violation  of  them  be  punishable  ?  These 
are  the  questions  to  be  answered ,  if  we  would  have  the  navigation  of  the 
ocean  safe." 

Among  the  rules  which  he  suggests  for  this  purpose  are :  1 .  Government 
inspection  before  and  during  the  voyage.  2.  Increased  responsibility. 
3.  More  stringent  rules  of  navigation.  4.  An  international  tribunal  to  de- 
cide q^uestions  arising  out  of  collision. 

Each  of  these  rules,  which  he  thinks -should  be  established,  he  maintains 
by  the  most  con\ancing  arguments.     And  on  the  subject  of  the  increased 


20  THE  LAW  OF  DAMAGES. 


Duty  of  Injured  Party  to  Protect  Himself. 


SO  bj  ordinary  effort  and  care,  or  at  a  moderate  expense,  for 
which  effort  and  expense  he  may  charge  the  wrongdoer.  And, 
where  by  the  use  of  such  means  he  may  prevent  loss,  he  can 
only  recover  for  such  loss  as  could  not  thus  be  prevented.' 

responsibility  of  the  party  guilty  of  negligence,  by  which  loss  of  Hfe  at  sea 
occurs,  he  says: 

'•This  may  be  enforced  by  extending  the  limits  of  accountability  and  the 
presumptions  of  negligence.  If  I  am  correct  in  my  theory,  that  in  the  pres- 
ent state  of  the  arts  employed  in  buildmg,  equipping  and  working  ships,  no 
loss  can  occur  without  negligence  somewhere,  there  is  good  reason  for  de- 
claring that  such  is  the  presumption,  and  the  only  question  is  how  to  fix  or 
apportion  the  responsibility  of  the  negligence.  The  builder  is,  in  the  first 
instance,  responsible  for  the  faulty  construction  of  the  ship,  the  iron  worker 
for  the  faulty  construction  of  the  engines  and  boilers,  and  the  master,  en- 
gineers and  mariners  for  the  faulty  navigation;  but  a  secondary  responsi- 
bility attaches  to  the  employer  of  the  builder  and  iron  worker,  and  to  the 
hirer  of  the  ship's  company,  and  this  secondaiy  responsibility  centers  in  one 
person,  the  owner  of  the  ship.  He  is  the  one  most  easily  found,  and  he  has 
given  a  pledge  for  his  responsibility  in  the  property  of  liis  vessel.  For  these 
reasons  he  should  be  presumed  negligent  and  held  responsible  for  all  losses 
until  he  excuses  himself  by  proof  that  he  had  exercised  the  highest  degree 
of  diligence  in  respect  to  the  employment  of  builders,  iron  workers  and  navi- 
gators. When  he  shows  that,  he  shifts  the  burden  of  responsibility  from 
himself  upon  some  of  the  persons  employed,  and  then  they  should  be  held 
to  an  accountabihty  as  strict  as  his  would  have  been;  and  for  the  reason 
that  they  are  not  so  easily  found,  and  have  given  no  pledges  for  their  fidelity, 
registration  should  be  required  of  all  concerned  in  the  construction  and 
equipment,  and  some  security  for  their  good  conduct. 

'•  As  to  the  limits  of  responsibility,  there  appears  to  be  no  reason  why  the 
rule  of  law  now  established  in  many  of  our  states,  providing  for  the  recovery, 
by  surviving  relatives,  of  damages  for  wrongful  death,  should  not  be  ex- 
tended to  losses  at  sea.  If  these  suggestions  should  find  favor,  a  disaster 
would  be  sure  to  bring  unpleasant  consequences  upon  those  who  have 
caused  it."    Cent.  L.  J.,  1875,  pp.  698,  699. 

Caution,  however,  should  be  exercised  that  the  maximum  amount  of 
damages  recoverable  for  a  wrong  be  not  fixed  too  low,  or  we  might  unfor- 
tunately witness  the  repetition  of  the  practice  of  the  young  Roman  nobleman 
mentioned  by  Gibbon,  who  ran  along  the  street,  striking  every  one  he  met 
upon  the  cheek,  while  his  slave  followed,  making  a  legal  tender  of  the  small 
amount  of  damages  fixed  by  law  therefor.  Dec.  and  Fall  of  Rom.  Emp., 
vol.  iv.,  360. 

'  .Jones  V.  Patten,  3  Ind.,  107;  The  .Cincinnati  &  Chic.  R.  Co.  v.  Rogers, 
24  Id.,  103.    See  also,  i^ost,  Ch.  8. 


GENEKAL  PRINCIPLES.  21 


Liquidation— Aggravation  and  Mitigation— Contributory  Act. 


§  22.  Liquidation  of  Damages.— Where  the  parties  to  a 
contract  have  stipuhited  for  the  amount  of  damages,  which  they 
may  do  in  all  cases,  this  amount,  in  the  absence  of  fraud  by  either 
party,  will  fix  the  damages  whether  the  amount  thus  agreed 
upon  be  in  fact  more  or  less  than  the  actual  damages  sustained. 
And,  although  the  courts  will  not  favor  penalties,  nor  allow 
stipulated  damages  to  be  used  as  a  means  to  evade  the  usury 
laws,  nor  allow  damages  on  a  contract  for  the  payment  of 
money  beyond  the  principal  and  interest,  they  will  regard  the 
fair  and  reasonable  stipulation  of  parties  in  respect  to  damages 
on  ordinary  contracts,  which  frequently  cannot  otherwise  be 
well  determined.^ 

§  23.     Matters  in  Aggravation  and  Mitigation  — 

AVhere  the  wrongful  act,  if  a  tort,  is  wanton  and  malicious,  and 
attended  with  circumstances  of  insult,  outrage  or  oppression, 
the  party  injured  is  not  limited  to  the  rule  of  actual  compen- 
sation; but  he  may  recover  in  addition  thereto  such  exemplary 
or  punitive  damages  as  the  jury  in  their  discretion  may  give, 
and  as,  under  the  circumstances  of  the  case,  may  be  warranted. 
And,  where  the  injury  is  the  result  of  fraud  or  gross  negli- 
gence, the  injured  party  may  also  recover,  not  only  for  the 
remote  consequences  of  the  wrong,  actual  damages,  but  be 
allowed  such  punitive  or  exemplary  damages  as  not  only  to 
punish  in  some  degree  the  wrongdoer,  but  also  to  have  a  salu- 
tary influence  in  preventing  others  from  perpetrating  similar 
wrongs.  Certain  matters  may  also  be  shown  in  mitigation  of 
damages,  which  we  shall  hereafter  consider.' 

§  24.    When  the  Party  Injured  Contributes  Thereto. 

— When  the  plaintiff,  in  some  material  manner,  contributes 
to  the  injury,  it  is  sufficient  to  defeat  the  right  of  recovery. 

'  Story  Eq.  Juris.,  §  318;  Gower  v.  Carter  &  Shattuck,  3  la.,  244;  Foley 
V.  McKegan,  4  Id.,  1.  See  also,  post,  Ch.  9,  for  a  full  consideration  of  the 
law  on  this  subject. 

3  See,  iwst.  Chaps.  6  and  7,  for  a  full  statement  of  the  law  and  authorities 
on  these  subjects. 


22  THE  LAW  OF  DAMAGES. 

Motives  of  Wrongdoer— Proper  Basis  of  Damages. 

If  some  part  of  the  loss  is  attributable  to  the  contributory  act 
or  negligence  of  the  plaintiff,  and  a  portion  not,  he  can  only 
recover  for  such  loss  as  accrued  without  his  fault;  for  no 
one  can  be  permitted  to  derive  an  advantage  from  his  own 
wrong.  And,  where  the  wrong  is  equal,  the  condition  of  the 
defendant  is  the  best,  and  the  plaintiff  cannot  recover.  The 
defendant  may  always  show,  in  defense  of  an  action,  that  the 
plaintiff  brought,  or  materially  contributed  to  bring,  the  injury 
upon  himself.* 

§  25.  The  Motives  ol  the  Wrongdoer.— The  good  or 
bad  motives  of  the  wrongdoer,  especially  in  torts,  has  an  influ- 
ence on  the  amount  of  damages  that  may  be  recovered  of  him. 
Thus,  wliere  one  does  an  injury  without  any  evil  intent,  as  by 
mistake,  or  thronoch  the  mere  want  of  ordinarv  care,  no  more 
damages  can  be  recovered  than  mere  compensation  for  the 
injury,  nor  can  this  compensation  extend  beyond  the  more 
immediate  consequences;  but,  as  we  have  remarked,  where 
the  wrong  is  willful  and  malicious,  or  arises  from  such  gross 
negligence  as  to  warrant  the  imputation  of  malice,  then  the 
injured  party  may  not  only  recover  those  pecuniary  losses 
resulting  from  even  more  remote  consequences  of  the  wrongful 
act,  but  also  exemplary   or  punitive  damages.^ 

§  26.  Controversy  as  to  the  Proper  Basis  of  Dama- 
ges.— Much  controversy  has  arisen  in  reference  to  the  true 
basis  of  the  law  of  damages,  in  cases  of  malicious  and  aggra- 
vated torts.  On  one  side,  it  is  maintained  that  the  true  prin- 
ciple in  all  cases  is  that  of  compensation;  that  this  principle 
is  adequate  in  every  case  to  furnish  a  remedy  for  even  the 
most  aggravated  wrongs;  that  proper  allowance  for  insult, 
outrage  or  indignity — for  suffering  of  mind  as  well  as  pain  to 

*Frazer  v.  Berkley,  7  Car.  &  Payne,  621;  Robinson  v.  Rupert,  23  Pa. 
St.,  554;  Evans  v.  Matson,  56  Id.,  54;  Prentice  v.  Shaw,  56  Me.,  427. 
See  also,  ^jos^,  Ch.  10. 

5  See.  post,  §§  63,  64.     But  see  §§  73,  74,  75,  76,  77,  and  notes. 


GENERAL  PRINCIPLES.  23 

Proper  Basis  of  Damages. 

the  body,  is  entirely  consistent  with  that  principle — and  that 
they  are  proper  as  elements  in  estimating  damages  in  accord- 
ance therewith;  that  the  plaintiff  should  not  be  allowed  to 
recover  more  damages  than  the  loss  he  has  sustained;  and 
that  the  uncontrolled  discretion  of  the  jury  in  such  cases,  to 
allow  what  are  called  exemplary  or  j^unitive  damages,  without 
regard  to  actual  loss,  is  at  variance  with  the  general  principles 
of  the  law. 

On  the  other  hand,  it  is  claimed  that  the  jury,  in  such 
cases,  should  not  only  be  allowed  to  assess  such  damages  as 
directly  result  from  the  wrong,  including  losses  more  or  less 
remote  from  the  injurious  cause,  and  for  which  a  pecuniary 
estimate  can  be  made;  but,  in  addition  thereto,  in  aggravated 
cases,  such  further  damages  in  their  discretion,  as  will  furnish 
an  example  to  others  and  punish  the  wrongdoer;  that  many 
of  the  elements  considered  proper  under  the  other  rule,  in 
estimating  damages,  such  as  suffering  of  mind  and  pain  to  the 
body,  are  not  really  capable  of  any  definite  proof,  or  of  any 
certain  pecuniary  estimate;  that  practically  the  same  result 
is  attained  by  either  method;  that  for  many  wrongs  there 
would  be  no  punishment,  except  such  as  is  imposed  by  the 
jury  in  this  Avay;  that  the  interests  of  society  are  thereby 
promoted,  and  that  this  doctrine  is  sustained  by  much  re- 
spectable, if  not  the  decided  weight  of,  authority. 

The  former  propositions  have  been  ably  maintained  by 
Professor  Greenleaf,  and  the  latter  by  Mr.  Sedgwick,  both 
distinguished  for  their  great  learning  and  ability,  and  re- 
nowned as  authors.'  Whatever  ought  to  be  the  rule  in  such 
cases,  it  seems  settled,  at  least  by  the  weight  of  authority,  that 
the  jury  may,  in  aggravated  cases  of  tort,  allow  exemplary  or 
punitive  damages.* 

I  2  Greenlf.  on  Ev.,  §§  266,  267;  Sedg.  on  Dam.,  3  Ed.,  appendix  and 
note. 
'  See  Ch.  6,  where  may  be  found  a  full  citation  of  authorities.     This 


24  THE  LAW  OF  DAMAGES. 

Law  and  Fact. 

§  27.  Law  and  Fact- — It  is  a  recognized  doctrine  of  the 
law  that  questions  of  law  should  be  determined  by  the  court, 
and  questions  of  fact  by  the  jury;  and  the  courts  now  hold 
great  control  over  the  jury  on  the  question  of  damages,  by 
instructions  as  to  the  proper  principles  and  rules  to  be  ob- 
served in  assessing  them,  and  as  to  the  essential  elements  of 
the  action  to  recover  them,  as  questions  of  law,  although  it 
appears  that  the  earlier  practice  was  to  leave  the  whole  matter, 
with  little  or  no  restraint,  to  the  discretion  of  the  jury. 

Except  in  cases  proper  for  assessing  exemplary  damages,  the 

doctrine  has  been  distinctly  recognized  in  nearly  every  State  of  the  Union : 

Alabama.— Mitchell  v.  Billingley,  17  Ala.,  391;  Ivey  v.  McQueen,  17  Id., 
409;  Parker  v.  Mise,  27  Id.,  4S0;  Devaughn  v.  Heath,  37  Id.,  395. 

Arkansas. — Clark  v.  Bales,  15  Ark.,  452. 

Connecticut. — Lindsley  v.  Bushnell,  15  Conn.,  225;  Huntley  v.  Bacon,  15 
Id.,  273;  Dibble  v.  Morris,  26  Id.,  426;  St.  Peters  Church  v.  Beach,  26  Id., 
365;  Bartram  y.  Stone,  31  Id.,  162. 

California. — Nightengale  v.  Scammell.  18  Cal.,  315;  Dorsey  v.  Manlove, 
14  Cal.,  554;  and  it  has  become  a  part  of  the  Statute  law  of  that  State.  See, 
ante.  §  19,  note. 

Delaivare. — Steamboat  Co.  v.  WhiUden.  4  Harring.,  228;  Jefferson  v. 
Adams,  4  Id..  321;  Bonsall  v.  McKay,  1  Houston,  520. 

Georgia. — The  doctrine  of  actual  compensation  seems  to  be  adhered  to  in 
Georgia,  Smith  v.  Overby,  3  Geo.,  241. 

Illinois. — The  doctrine  of  the  text  is  followed  in,  Grable  v.  Margrave,  3 
Scam..  372;  McNamara  v.  King.  2  Gillm.,  432;  Hawke  v.  Ridgeway,  33  III, 
473;  Chicago,  etc.  R.  Co.  v.  Flagg,  43  Id.,  364;  Peoria  Bridge  Ass.  v. 
Loomis,  20  Id.,  235;  Foster  v.  Nichols,  28  Id.,  486;  Reeder  v.  Purdy,  48 
Id.,  261;  Reno  v.  Wilson,  49  Id.,  95;  Johnson  v.  Camp,  51  Id.,  219;  Roth 
V.  Smith,  54  Id.,  4^31. 

loiva. — Hendrickson  v.  Kingsbury,  21  la.,  379;  Plummerv.  Harbut,  3  Id., 
308;  Cochran  v.  Miller,  13  Id.,  128,  which  was  an  action  for  damages  against 
a  physician  for  malpractice;  Denslow  v.  Vanhorn,  16  Id.,  478;  Williamson 
V.  Western  Stage  Co.,  24  Id.,  171;  Garland  v.  Wholeham,  26,  Id.,  185. 

Indiana. — Anthony  v.  Gilbert,  4  Blackf.,  348;  Guard  v.  Risk,  11  Ind., 
156;  MiUison  v.  Hock,  17  Id.,  227;  Little  v.  Tingle,  26  Id.,  168. 

Kentucky. — Jennings  v.  Maddox,  8  B.  Mon.,  430;  Childs  v.  Drake.  2  Met., 
146;  Bronson  v.  Green,  2  Duvall,  234;  Kentuclcy,  etc.  R.  Co.  v.  DUls,  2 
Bush.,  593. 

A'ansa-s. —Wiley  v.  Keokuk,  6  Kans.,  94;  Wiley  v.  Man-a-to-wah.  Id., 
Ill;  Leavenworth,  etc.  R.  Co.  v.  Rice,  10  Id..  466. 

Mississipjn. — Against  a  R.  R.  Co.  for  wUlful  wrong-doing,  or  the  gross 


GENERAL  PRINCIPLES.  25 


Illustrations. 


amount  of  damages,  even  in  tort,  is  subject  to  rules,  the  observ- 
ance of  which  is  enjoined  by  the  courts;  and  for  breaches  of 
contracts,  as  well  as  in  many  cases  of  torts,  it  is  frequently 
laro-ely,  if  not  entirely,  a  mere  matter  of  law  and  of  computa- 
tion. Hence,  the  question  of  damages  is  ordinarily  one  of 
law  and  fact.  The  rules  to  be  applied  to  the  facts  and  the 
essential  elements  of  the  action,  are  questions  of  law  to  be 
determined  by  the  court.  The  facts  necessary  to  authorize 
a  recovery  under  the  law  as  given,  and  the  amount  to  which 
the  plaintifl'  may  be  entitled  under  the  law  and  the  facts,  must 
be  found  by  the  jury. 

§  28.  Illustrations.— Thus,  in  an  action  for  damages  for 
the  conversion  of  property,  if  the  claim  is  controverted,  two 
distinct  questions  of  law  and  of  fact  are  presented.      The 

negligence  of  an  employe,  Chappin  v.  New  Orleans  R.  Co.,  38  Miss.,  242; 
and  the  same  doctrine  was  held  in  New  Orleans,  etc.  R.  Co.  v.  Bailey,  40 
Id.,  395. 

i»/«r//?aMfZ.— Baltimore,  etc.  R.  Co.  v.  Blocker,  27  Md.,  277. 

3/issown.— Freidenheit  v.  Edmunson,  36  Mo.,  226;  Buckley  v.  Knapp,  48 
Id.,  152;  Corwin  v.  Walton,  18  Id.,  71;  McKeon  v.  Citizens'  R.  Co.,  42 
Id.',  79. ' 

Maine.— In  trespass  vi  et  armis.     Pike  v.  Billing,  48  Me.,  539. 

Massachusetts.— HhQ  rule  of  actual  compensation  is  adhered  to  in  this 
State,  even  in  cases  of  aggravated  torts.  Barnard  v.  Poor,  21  Pick.,  378; 
Austin  V.  Wilson,  4  Cush.,  273. 

Michigan.— The  doctrine  of  the  text  sustained,  Hyatt  v.  Adams,  16 
Mich.,  180.  ' 

Minnesota.— Fox  v.  Stevens,  13  Minn.,  272;  Jones  v.  Rahilly,  16  Id.,  320. 
K  North  Carolina.— Wiley  V.  Smitherman,  8  Ired.,  236;  Gihreath  v.  AUen, 
10  Id..  67. 

New  ForA'.— TiUotson  v.  Cheetham,  3  Johns.,  56;  Woeii  v.  Jenkins,  14 
Id.,  352  ;  King  v.  Root,  4  Wend.,  513 ;  Brizsee  v.  Maybee,  21  Id.,  144; 
in  an  action  of  replevin.  Tift  v.  Culver,  3  Hill.,  180;  Lipe  v.  Eisenlerd,  32 
N.  Y.,  229;  Kendall  v.  Stone,  1  Seld.,  14;  Walker  v.  Wilson,  8  Bosw.,  586. 

New  Ham2)shire.—Whipi,le  v.  Wallpole,  10  N.  H.,  130;  Perkins  v.  Towle, 
43  Id.,  220.    But  see  Fay  v.  Parker,  53  Id.,  342. 

New  Jersei/. —Ackevson  v.  Erie  R.  Co.,  3  Vroom,  254. 

07wo.— Against  a  Railroad  Co.  for  gross  negligence,  Atlantic,  etc.,  R.  Co. 
V.  Dunn,  19  Ohio  St.,  162;  Roberts  v.  Mason,  10  Id.,  277. 

Pennsylvania.— SommevY.  Wilt,  4  S.  &  R.,  19;  McBride  v.  McLaughlin,  5 


26  THE  LAW  OF  DAMAGES. 

Illustrations. 

questions  of  law  relate  to  what  in  law  is  a  conversion,  and  the 
proj^er  rule  for  estimating  the  amount  of  damages.  The  ques- 
tions of  fact  for  the  jury  are:  first,  as  to  whether  the  acts  done 
by  the  defendant  constitute  a  conversion  inlaw;  and  secondly, 
if  so  found,  the  amount  of  damages  which,  under  the  rules  of 
law,  should  be  assessed. 

In  regard  to  the  amount  of  damages,  the  court  would  in- 
struct the  jury  that  it  should  be  the  value  of  the  property  at 
the  time  of  the  conversion,  with  interest,  and  perhaps  expen- 
ses incurred  in  searching  for  the  same,  where  search  was  made; 
or,  the  highest  value  of  the  property  between  the  conversion 
and  the  commencement  of  the  suit,  or  the  time  of  trial,  with 
expenses,  etc.,  as  one  or  the  other  rule  might  be  regarded  as 
the  proper  one  by  the  court. 

It  would  be  the  duty  of  the  jury  to  observe  the  rules  of  law 
thus  given;  the  control  of  the  court  over  the  jury  for  a  disre- 
gard of  the  law  thus  given,  being  enforced  by  its  power  to  set 
aside  the  verdict  and  grant  a  new  trial. 

§  29.  So,  in  an  action  for  a  sum  claimed  to  be  due  on  a 
promissory  note:  if  there  should  be  a  denial  of  the  execution 
of  the  same,  or  an  admission  of  the  execution,  but  a  plea  of 
payment  in  whole  of  in  part,  which  is  denied,  the  jury  would 

Watts.,  375;  Phillips  v.  Lawrence,  6  W.  &  S.,  154;  Nagle  v.  Mallison,  34 
Pa.  St.,  48;  Pennsylvania  R.  Co.  v.  Books,  57  Id.,  339. 

South  Carolina. — Spikes  v.  English,  4  Strobh.,  34;  Greenville,  etc.  R.  Co. 
V.  Partlow,  14  Rich.  L.,  237. 

Texas.— Gordon  v.  Jones,  27  Tex.,  620. 

Tennessee. — Byram  v.  McGuire,  3  Head.,  530;  also  recognized  in  Jones  v. 
Turpin,  6  Heisk.,  181  (1871). 

Vermont. — Nye  v.  Merriman,  35  Vt.,  438. 

Wisconsin.— Picket  v.  Crook,  20  Wis.,  358;  Morley  v.  Dunbar,  24  Id., 
183;  Hooker  v.  Newton,  Id.,  292. 

And  the  doctrine  is  fully  and  distinctly  asserted  by  the  United  States 
Courts.  Day  v.  Woodworth,  13  How.,  363  (1851);  The  Yankee  v.  Gallagher, 
1  McCall,  467  (1859);  Philadelphia,  etc.  R.  Co.  v.  Quigley,  21  How.,  202 
(1858);  Gould  V.  Christianson,  Blatchf.  &  H.,  507;  Walker  v.  Smith,  1 
Wash.  C.  C,  153  (1804). 


GENERAL  PRINCIPLES.  27 

Power  of  Court— Rules,  Artificial  and  Arbitrary. 

find  on  these  issues  as  questions  of  fact;  and  these  being  found 
in  favor  of  the  plaintiff,  they  would,  under  the  instructions  of 
the  court,  as  to  the  proper  measure  of  damages  in  such  cases, 
calculate  the  amount  due  on  the  note  as  the  amount  of  dama- 
ges; or,  in  case  of  part  payment,  such  amount,  less  the  amount 
of  payment,  would  be  the  damages. 

§  30.  Power  of  the  Court. — It  will  be  seen  that  what- 
ever may  have  been  the  earlier  practice  of  the  courts,  they 
now  have,  to  a  large  extent,  a  restraining  and  controlling 
power  over  juries,  the  only  qualification  being  in  cases  of 
aggravated  torts,  where  exemplary  damages  are  proper.  And 
even  in  tliose  cases,  although  there  are  no  definite  rules  to 
control  the  amount  which  they  may  assess,  the  court  still  has 
to  some  extent,  control  of  the  verdict,  by  its  power  to  set  it 
aside  where  it  is  evident  from  the  amount  or  otherwise  that 
the  jury  were  influenced  by  passion  or  prejudice,  or  where  the 
verdict  is  the  result  of  a  mistake  of  the  law  or  the  facts  in  the 
case.' 

§  31.  Rules,  Artificial  and  Arbitrary. — Amidst  the 
conflicting  decisions  in  reference  to  rules  of  damages,  on  the 
same  facts,  the  difficulty,  if  not  impossibility,  of  deducing 
uniform,  exact  and  just  rules  from  them,  will  be  apparent; 
and  the  nature  of  the  subject  is  such  that  general  reasoning 
and  principles  will  not  entirely  relieve  it  of  embarrassment. 
For,  in  many  instances,  in  the  very  nature  of  things,  they  must 
be  more  or  less  artificial  and  arbitrary.  But  the  tendency  of  the 
decisions  on  many  questions  heretofore  conflicting,  is  towards 
harmony  and  unity;  and  after  a  survey  of  this  field  of  discord 
and  conflict,  and  a  study  of  the  principles  and  elements  of  the 
subject,  that  are  recognized  by  reason  and  the  weight  of 
authority,  we  present  the  following  classification  and  state- 
ment of  elements,  rules  and  principles,  relating  thereto,  as 
the  most  clear,  concise,  and  definite,  which  the  present  state 
of  the  law  enables  us  to  offer: 

»  See,  post,  Ch.  37. 


28  THE  LAW  OF  DAMAGES. 

Elements,  Principles,  and  Rules. 

§32.    Elements,  Principles  and  Rules.— 1.    It  is  an 

essential  element  in  an  action  for  damages  that  the  plaintiff  have 
a  legal  right,  or  interest,  subject  to,  or  susceptible  of,  damage. 

2.  That  to  such  right,  or  interest,  there  be  an  injury  by  the 
defendant,  cognizable  by  law. 

3.  The  general  principle,  recognized  in  the  measure  of 
damages,  is  that  of  compensation. 

4.  The  general  rule  of  damages  is,  that  the  injured  party 
may  recover  for  all  losses  sustained  of  which  the  injury  is  the 
proximate  cause;  such  as  the  principal  and  interest  due  on  the 
failure  to  pay  money  according  to  contract;  the  value  of  prop- 
erty conveyed  on  a  breach  of  the  covenant  for  title;  the  value 
of  property  on  the  failure  to  deliver  it  when  sold  and  paid  for; 
the  value  of  property  converted,  and  the  amount  of  loss  sus- 
tained by  an  injury  to  the  person,  reputation,  or  property  of 
another.  But  this  rule,  in  cases  of  torts,  is  extended  to  cover 
losses  more  or  less  remote,  which  directly  and  naturally  result 
from  the  wrong,  depending  upon  the  motives  of  the  wrong- 
doer, or  the  character  or  degree  of  the  wrong. 

5.  In  cases  of  officious  interference  with  property,  willful 
wrongs,  frauds,  or  gross  negligence,  the  liability  may  extend 
to  remote  effects  and  losses,  even  to  those  that  are  the  result 
of  a  natural  chain  of  effects,  produced  and  caused  by  the 
original  wrong. 

6.  For  torts,  under  circumstances  of  great  aggravation, 
the  jury,  in  addition  to  such  actual  damages  as  they  may  tind 
the  injured  party  entitled  to  under  the  foregoing  rules,  may 
further  allow,  for  an  example  to  others  and  a  punishment  of 
the  wrongdoer,  exemplary  or  punitive  damages.'' 

»  Although  the  author  has  felt  compelled,  from  the  preponderance  of 
authority,  to  thus  state  the  rule,  he  would  also  express  his  convictions  that 
the  adoption  of  the  doctrine  was  a  departure  from  the  true  principles  of  the 
law  of  damages  and  of  public  policy,  and  a  flaw  in  the  structure  of  our 
jurisprudence,  involving  much  controversy,  and  resulting  in  confusion  and 
uncertainty.  Nor  is  the  doctrine  by  any  means  so  deeply  rooted,  in  the 
common  law,  as  to  be  placed  beyond  the  bounds  of  controversy.  See,  post, 
§§  73,  74,  75,  76,  77,  and  notes. 


GENERAL  PRINCIPLES.  29 

Elements,  Principles,  and  Rules. 

7.  In  cases  of  torts  the  defendant  may  show,  in  mitigation 
of  damages,  that  the  tortious  act  was  without  malice;  and 
especially  in  actions  for  injuries  to  the  person,  or  reputation, 
he  may  show  any  aggravating  circumstances  on  the  part  of 
the  injured  party,  tending  to  provoke  the  injury. 

8.  It  is  the  duty  of  a  person  to  use  ordinary  and  reasona- 
ble care  and  means  to  prevent  an  injury,  and  the  consequences 
of  it,  and  he  can  only  recover  damages  for  such  losses  as 
could  not,  by  such  care  and  means,  be  avoided, 

9.  Where  the  parties  have  stipulated  as  to  the  amount  of 
damages,  that  will  ordinarily  hx  the  amount  recoverable, 
whether  the  actual  damages  be  greater  or  less  than  the  amount 
thus  fixed. 

10.  If  a  party,  in  any  material  manner,  contributes  to  the 
injury,  he  cannot  recover  for  such  losses  as  result  from  his 
own,  or  from  his  own  and  another's  fault. 

11.  In  an  action  on  a  contract  the  plaintiif  should  recover 
any  actual  damages,  sustained  by  a  breach  thereof,  that  may 
fairly  and  reasonably  be  considered  as  naturally  arising  there- 
from, or  such  as  was  contemplated,  or  that  may  reasonably  be 
presumed  to  have  been  in  the  contemplation  of  the  parties,  at 
the  time  of  the  contract,  as  the  probable  result  of  a  breach 
of  it.' 


3'  Interest  may  be  referred  to  as  an  element  of  damaores.  As  a  general 
rule,  where  the  right  to  recover  damages  is  certain,  or  where  they  are  capa- 
ble of  being  made  certain  by  calculation,  and  a  right  to  recover  them  is 
vested  in  the  party  on  a  certain  day,  he  is  also  entitled  to  recover  interest 
thereon  from  that  day,  except  during  such  period  as  the  debtor  is  prevented 
from  paying  by  law,  or  the  act  of  the  creditor.  Dana  v.  Fiedler,  12  N.  Y., 
40;  Living  v.  Miller,  11  Id.,  406;  BrinkerhoofF  v.  Phelps.  24  Barb.,  100; 
Fitzgerald  V.  Caldwell,  2  Dallas,  215;  annotated  Civil  Code  Cal.,  (Raymond 
&  Burch,  1874),  Vol.  2,  p.  385,  and  note;  and  this  rule  is  applied  to  wrong- 
ful injuries.  Id.  See,  also,  Richmond  v.  The  Dubuque  etc.  R.  Co.,  33  la., 
422,  and  cases  there  cited;  Andrews  v.  Durant,  18  N.  Y.,  496;  Jackson  v. 
Wood,  24  Wend.,  443. 


30  THE  LAW  OF  DAMAGES. 


Treatment  of  the  Subject  Indicated. 


§  33.  Treatment  of  the  Subject  Indicated—The  chap- 
ters immediately  succeeding  will  be  devoted  to  an  examination 
and  illustration  of  the  foregoing  elements,  principles  and  rules, 
relating  to  and  affecting  damages,  after  which  we  shall  con- 
sider the  application  of  the  same  in  actions  for  breaches  of 
contracts  in  various  cases,  and  finally  in  various  actions  for 
torts. 


INTEREST  OF  PLAINTIFF.  31 


Essential  Element  of  an  Action. 


OHAPTEE  11 


OF  THE  RIGHT  OR  IN;;rEREST  OF  THE  PLAINTIFF. 

Section  34.  Essential  Element  of  an  Action. 

35.  Instances — Damnum  Absque  Injuria. 

37.  Non-Exercise  of  Powers  by  Municipal  Corporations 

38.  Other  Cases  where  a  Municipal  Corporation  is  not  Xiiable. 

39.  Publication  of  Uncalled-for  Letters. 

40.  Where  no  Kight  Exists  in  Other  Cases. 

§  34.  Essential  Element  of  an  Action.— The  plaintiff 
can  sustain  no  legal  damage,  unless  lie  has  a  riglit,  or  interest, 
subject  to,  or  susceptible  of,  damage  or  injury;  and  it  is  an 
essential  element  of  an  action  for  damages,  that  the  plaintiff 
have  such  a  right  ^r  interest.  It  is  not  sufficient  that  an 
unauthorized  act,  or  injury,  be  done;  but  the  plaintiff  must 
sustain  a  loss  bj  the  wrong.  This  he  cannot  suffer  unless  he 
has  a  legal  interest  or  right  that  can  be  impaired ;  and  with- 
out this,  where  there  is  injuria,  it  is  injuria  sine  damno  and 
the  party  is  without  remedy.  The  plaintiff  must  show  not 
only  injuria^  but  an  invasion  of  some  right  or  interest,  which 
he  is  entitled  to  enjoy,  to  the  exclusion  of  the  defendant  and 
every  other  person.  And  if  the  wrong  consists  in  non- 
performance, or  mis-performance,  of  a  duty,  it  is  essential  for 
the  plaintiff  to  show  that  he  was  entitled  to  the  performance 
of  the  duty,  and  not  some  other  party,  otherwise  he  can  re- 
cover no  damages.  No  one  can  recover  damages  unless  some 
right  is  infringed. 


32  THE  LxVW  OF  DAMAGES. 


Damnum  Absque  Injuria-Municlpal  Corporations. 


§  35.   Instances— Damnum  Absque  Injuria.— Thus,  the 

defendant  is  not  responsible  for  obstructing  the  liglits  of  the 
owner  of  adjoining  premises,  unless  they  are  ancient  lights,  to 
which  the  owner  of  the  adjoining  premises  may  have  acquired 
a  right  by  prescription,  or  otherwise.'  So,  at  common  law,  if 
a  person  built  a  house  on  th^  edge  of  his  land,  and  the  pro- 
prietor of  the  adjoining  land,  within  twenty  years,  digs  on  his 
own  lands  so  near  the  house  that  it  falls  down,  as  the  owner 
of  the  house  had  acquired  thereby  no  right  to  the  support  of 
the  adjoining  land  by  prescription,»he  had  no  rights  in  that 
respect  to  be  injured,  and  is  without  remedy.  It  is  damnum 
absque  injuria? 

§  36.  So,  it  was  held  that  a  statute,  which  required  the 
overseers  of  highways  to  repair  and  keep  in  order  the  highways 
within  their  road  districts,  did  not  impose  an  absolute  duty  so 
as  to  make  the  overseers  liable  in  a  civil  action  for  the  non- 
performance of  it.' 

§  37.  Non-Exercise  of  Powers  by  Municipal  Corpo- 
rations.—So,  the  power  which  may  be  possessed  by  munici- 
pal corporations,  to  act  through  their  agents  in  respect  to  any 
jDarticular  matter,  such  as  to  provide  sanit*y  regulations,  and 
for  the  arrest  of  infectious  diseases,  or  of  conflagrations,  does  not 
make  them  liable  for  negligence  in  not  executing  these  powers. 

Thus,  in  an  action  in  Iowa,  against  a  city  for  neglecting  to 
take  precautions  to  prevent  the  spread  of  small  pox  whereby 
the  plaintiff  was  exposed  to  the  contagion,  and  communicated 
the  disease  to  his  two  children  who  died  thereof,  it  was  held, 

»  Malian  v.  Brown,  13  Wend.,  261. 

=  Brown  v.  Robins,  4  H.  &  N.,  186;  Strogran  v.  Knowles,  6  Id.,  4o-4;  Dodd 
V.  Holme,  1  A.  &  E.,  493;  Backhouse  v.  Bononi,  9  H.  of  L.  Cas.,  503;  s. 
c.',  E.  B.  &  E.,  422,  (96  E.  C.  L.  R.);  Lasala  v.  Holbrook,  4  Paige  (N.  Y.), 
169. 

3  Bartlett  v.  Crozier,  17  John.,  438;  Garlinghouse  v.  Jacobs,  29  N.  Y., 
297.  See,  also,  Wilson  v.  Halifax,  Law  R.,  3  Exch.,  114;  Burnett  v.  New 
Orleans,  14  La.  An.,  120;  Smoot  v.  Wetumpka,  24  Ala.,  112;  Sopor  v.  Henry 
Co.,  26  la  ,  264. 


INTEEEST  OF  PLAINTIFF. 


Municipal  Corporations. 


that,  although  the  oreneral  laws  of  the  state,  relating  to  cities, 
constituted  the  major  and  council  a  board  of  health,  with 
power  to  make  "  regulations  in  relation  to  cleansing  the  streets, 
alleys,  and  drains  of  the  city  or  town;  in  relation  to  commu- 
nication with  houses  where  there  is  any  infectious  disease;  to 
establish  pest-houses  or  hospitals;  and,  when  deemed  expe- 
dient and  necessary  to  prevent  the  spread  of  any  contagious 
disease,  to  remove  to  said  pest-house  or  hospital  any  person 
sick  with  the  Asiatic  or  malignant  cholera,  or  other  malio-- 
nant  or  infectious  disease";  the  neglect  to  exercise  such 
powers,  or  make  such  regulations,  would  not  render  the  city 
liable  for  any  losses  resulting  therefrom  to  a  citizen. 

Day,  J.,  in  delivering  the  opinion  of  the  court  in  this  case, 
remarks:  "The  principle  w^hich  would  hold  the  defendant 
liable  for  the  negligent  acts  here  complained  of  would  compel 
a  city  to  respond  in  damages  for  the  neglect  of  its  police  to 
suppress  a  riot,  the  failure  of  its  firemen  to  arrest  a  conflagra- 
tion, and  the  negligence  of  its  physician  in  prescribing  for  a 
patient.  It  is  impossible  to  conceive  of  the  endless  complica- 
tions and  embarrassments  which  such  a  doctrine  would  in- 
volve, and  the  extent  to  which  the  public  interests  would 
thereby  suffer.  It  is  safe  to  assume  that,  if  such  were  recog- 
nized as  the  law,  no  town  would  voluntarily  assume  corporate 
functions,  and  every  industrial  and  commercial  interest  would 
become  paralyzed.  The  true  doctrine  is  that  the  powers  con- 
ferred, in  the  sections  we  have  been  considering,  are  of  a  leg- 
islative and  governmental  nature,  for  a  defective  execution  of 
which  the  city  cannot  be  held  liable.  In  discharging  these 
legislative  functions,  the  city  acts  as  a  quasi  sovereignty  and 
is  not  responsible  for  a  neglect  or  non-performance  of  its  offi- 
cers or  agents."* 

4  Og-g  V.  The  City  of  Lansing,  35  la.,  495.     See,  also,  Wheeler  v.  City  of 
Cincinnati,  19  Ohio  St.,  19;  Brinkmeyer  v.  The  City  of  Evansville,  29  Ind., 
187;  Western  College  of  Medicine  v.  City  of  Cleveland,  12  Ohio  St.,  375; 
Smootv.  Wetumpka,  24  Ala.,  112. 
3 


34  THE  LAW  OF  DAMAGES. 

Where  Municipal  Corporation  not  Liable -Uncalled-for  Letters. 

And  where  an  ordinance  of  a  citj  provided  for  the  opening 
of  a  street  through  the  hinds  of  two  parties,  and  one  of  them 
obtained  a  temporary  injunction  restraining  the  same;  but  on 
a  final  hearing  it  was  dissolved,  and  the  street  was  opened,  and 
a  suit  was  brought  on  the  injunction  bond  by  the  other  party, 
claimino-  damages  thereon  on  account  of  a  depreciation  in  the 
value  of  the  land  and  of  loss  sustained  by  the  delay  in  the 
opening  of  the  street,  caused  by  the  injunction,  and  loss 
thereby  of  sales  of  lots  thereon,  which  he  might  have  made,  it 
was  held,  that  the  injunction  operated  to  deprive  him  of  no 
legal  right  which  the  bond  was  intended  to  j^rotect — that  he 
had  acquired  no  fprivilege  or  right  to  the  use  of  the  street,  and 
that  he  had  sustained  no  injury  for  which  he  could  claim 
redress  by  an  action  on  the  bond/ 

§  38.    Other  Cases  where  a  3Iuiiicipal  Corporation  is 

not  Liable. — Xor  is  a  municipal  corporation  ordinarily  liable 
for  damage  sustained  by  the  owners  of  proj)erty  adjoining 
streets,  by  reason  of  grading,  or  otherwise  improving  the  same, 
under  a  power  so  to  do  conferred  by  the  charter  of  the  city 
or  by  statute.  Where  land  is  condemned  for  public  purposes 
compensation  tlierefor  may  be  recovered ;  but  where  a  party 
suffers  injury  by  an  excavation,  or  a  filling  of  the  street, 
according  to  a  grade  established  by  authority,  no  damage  can 
be  recovered,  if  the  work  is  carefully  and  skillfully  done;  it 
is  damnum  absque  injuria.  Kor  can  a  party  recover  conse- 
quential damages  by  reason  of  the  establishing  of  a  highway.^ 

§  39.  Publication  of  Uncalled-for  Letters.— An  action 
was  brought  by  the  publishers  of  a  daily  paper  at  Rochester, 
N.  Y.,  against  the  postmaster  of  that  city,  in  which  the  plain- 
tiffs claimed  that  they  were  the  publishers  of  a  paper  having 

s  Stewart  v.  State  of  Maryland,  20  Md..  97. 

6  Shearman  &  Redf.  on  Neg..  §§  129,  370;  Radcliff  v.  Brooklyn.  4  N.  Y., 
19-5;  Lanebarv.  St.  Louis,  15  Mo.,  GIO;  Larkin  v.  Saginaw,  11  Mich.,  88; 
Logansport  v.  Wright,  2-5  Ind.,  512;  Roberts  v.  Chicago,  26  111.,  249; 
Schattner  v.  The  City  of  Kansas,  53  Mo.,  162. 


INTEREST  OF  PLAINTIFF.  35 


Uncalled-for  Letters. 


the  largest  circulation  of  any  published  in  that  city,  and 
that  it  was  the  duty  of  the  defendant,  under  an  Act  of  Con- 
gress, to  advertise  uncalled-for  letters  in  their  paper  and  that 
the  defendant  had  refused  so  to  do,  whereby  they  had  been 
deprived  of  profits  which  would  otherwise  have  accrued  to 
them  therefrom.  There  was  a  demurrer  to  the  plaintiffs' 
pleading,  on  the  ground  "  that  it  did  not  appear  that  the 
plaintiffs  had  any  vested  right  in  the  advertising  of  the  letters 
uncalled-for  in  the  postoffice  at  Rochester,  nor  that  the  duty 
on  the  part  of  the  defendant  to  advertise  the  letters  uncalled- 
for  at  the  postoffice  at  Rochester,  was  a  duty  to  the  plaintiffs, 
or  in  the  due  performance  of  which  the  plaintiffs  had  any 
exclusive  interest  or  right."     The  demurrer  was  sustained. 

The  court,  on  appeal,  held  that  there  was  no  foundation 
whatever  for  an  action  for  such  a  cause;  that  whenever  an 
action  is  brought  for  a  breach  of  duty,  the  party  bringing  it 
must  show  that  he  had  an  interest  in  the  performance  of  the 
duty,  and  that  the  duty  was  imposed  for  his  benefit;  that 
when  the  duty  is  imposed  for  the  benefit  of  another,  or  for  the 
public  benefit,  and  his  own  advantage  is  merely  incidental 
and  no  part  of  the  design  of  the  statute,  no  such  right  is  crea- 
ted as  forms  the  subject  of  an  action;  that  the  Act  of  Congress, 
providing  for  the  advertising  of  uncalled-for  letters,  was  not 
passed  to  confer  profitable  employment  upon  publishers,  but 
to  benefit  persons  likely  to  receive  communications  through 
the  postoffice;  that  the  statute  secures  to  publishers  no  fixed 
and  absolute  right,  and  imposes  on  them  no  duty,  and  that 
they  have  no  such  interest  as  gives  them  a  right  of  action 
under  the  statute.' 

The  same  doctrine  is  further  illustrated  by  a  recent  case  in 
Iowa.  Thus,  the  statute  in  that  state  provided  that  the  boards 
of  supervisors,  of  the  several  coimties,  should  select  two  news- 
papers having  the  largest  circulation,  in  which  to  publish  the 

7  Opinion  by  Jolinson,  J.,  in  Strong  v.  Campbell,  11  Barb.,  (N.  Y.),  135. 


36  THE  LAW  OF  DAMAGES. 

Where  no  right  exists  in  other  Cases. 

proceedings  of  the  board,  and  the  laws  of  the  general  assembly 
of  the  state.  It  was  held,  nnder  this  statute,  that  the  proprie- 
tor of  a  newspaper  had  no  such  private  or  personal  interest 
in  the  publication  of  such  laws  and  proceedings,  as  that  he 
could,  in  his  own  name,  maintain  an  action  to  compel  the 
board  by  mandamus  to  order  such  publication  in  his  paper." 

§  40 .  Where  no  Right  Exists  in  other  Cases.  —Where, 
by  the  working  of  a  mine  or  the  digging  of  a  well  on  the 
lands  of  the  owner,  the  subterranean  veins  and  channels 
which  supply  the  well  of  another  on  adjoining  lands  are  cut 
off,  and  the  supply  of  water  to  the  latter  thus  prevented,  this 
is  damnum  absque  injuria^  and  affords  no  ground  for  dama- 
ges.' So,  where  a  stream  is  caused  by  artificial  means  and  is 
an  artificial  stream,  and  the  works  at  its  source  which  caused 
it  are  suspended,  whereby  the  supply  of  water  below  is  cut 
off  and  ceases;  the  party  benefitted  by  the  flow  through  his 
lands  can  maintain  no  action  against  the  party  thus  causing 
it's  suspension,  as  he  has  no  legal  right  to  the  water  thus 
suspended.' 

So,  a  person  cannot  maintain  an  action  for  damages  on  ac- 
count of  animals/erfls  naturcB^  or  for  an  entry  upon  his  lands 
from  necessity,  as  where  a  traveler  in  a  highway  is  prevented 
from  proceeding  therein,  by  reason  of  an  overflow  of  water  or 
drifts  of  snow,  or  the  like,  and  he  enters  upon  the  adjoining 
lands  to  avoid  the  obstruction,'  or  for  the  pulling  down  of  a 

8  Welch  V.  The  Board  of  Supervisors,  etc.,  23  la.,  199.  See,  also.  Smith 
V.  Yoram,  37  Id.,  89. 

9  Acton  V.  Blundell,  12  M.  &  W.,  324;  Chasemore  v.  Richards,  2  H.  &  N., 
168.  S.  C;  7  H.  L.  Cas.,  349;  South  Shields  Water  Works  Co.  v.  Cookson, 
15  L.J.  Exch.,  315. 

■  Gavel  V.  Martyn,  19  C.  B.  N.  S.,  732,  (115  E.  C.  L.  R.)  ;  Nutall  v. 
BraceweU,  L.  R.,  2  Ex.,  1. 

»  2  Black.  Com.,  389;  Gellett  v.  Mason,  7  Johns.,  16;  1  Hill,  on  Torts, 
479.  482. 

3  Absor  V.  French,  2  Show.,  28;  Daws  v.  Hawkins,  8  C.  B.  N.  S.,  848, 
856,  (98  E.  C.  L.  R.);  Mansfied,  C.  J.,  in  Taylor  v.  Whitehead,  2  Dough, 
749;  Ellenboroush,  C.  J.,  in  Bullard  v.  Harrison,  4  Mr&  S.,  393. 


INTEREST  OF  PLAINTIFF.  37 


Where  no  right  exists  in  other  Cases. 


house,  when  necessary,  to  arrest  the  progress  of  a  fire/  In 
such  cases  the  maxim  salus  popioli  suprema  lex  applies  and 
it  is  damnum  absque  injuria.  So,  a  person  has  a  right  to 
carry  off  the  surface  water  from  his  land,  by  filling  wet  or 
marsliy  places,  and  if  damage  is  thereby  sustained  by  the 
adjoining  owner  it  is  damnum  alsque  injuria!" 

4  Russell  V.  Mayor  of  New  York,  2  Den.  (N.  Y.),  461;  The  Mayor,  etc.  v. 
Lord,  17  Wend.,  285;  2  Kent's  Com.,  333;  Field  v.  City  of  Des  Moines,  39 
la.,  575. 

5  Goodale  v.  Tuttle,  29  N.  Y.,  459;  Wheeler  v.  Worcester,  10  Allen,  591; 
Gannon  v.  Hargadon,  Id.,  106;  Dickinson  v.  Worcester,  7  Id.,  19;  Delhi  v. 
Youmans,  50  Barb.,  316;  Livingston  v.  McDonald,  21  la.,  160;  Flagg  v. 
Worcester,  13  Gray,  601 ;  City  Council  of  Montgomery  v.  Gilmer,  33  Ala.,  116; 
Imlar  v.  Springfield,  55  Mo.,  119.  Miller  v.  Laubach,  47  Geo.,  260;  Aurora 
V.  Reed,  57  111.,  30;  Penoyer  v.  Saginaw,  8  Mich.,  534. 

From  an  able  article  in  The  Southern  Law  Rev.,  New  Series,  Vol.  1,  p. 
210,  by  Henry  E.  Mills,  Esq.,  of  the  St.  Louis  Bar,  on  the  subject  of  the 
"  Responsibihty  of  Municipal  Corporations  for  imperfect  sewerage  and  drain- 
age," we  copy  the  following  clear  statement  of  the  law  on  this  subject: 

"  An  individual  may  fill  up  low  places  on  his  lot,  or  erect  buildings  which 
divei-t  the  surface  water  from  his  own  lands,  and  the  city  may  divert  surface 
water,  and  no  compensation  can  be  recovered  further  than  that  considered 
in  the  original  condemnation  of  the  street.  But  neither  the  individual  nor 
the  corporation  can  interfere  with  the  natural  flow  of  water,  and  make 
drains  and  collect  the  water  in  a  body,  and  precipitate  it  in  a  greatly  in- 
creased or  unnatural  quantity  upon  an  adjoining  proprietor,  to  his  injury." 

For  a  fuU  citation  of  authorities  on  this  subject,  see  1  Smith's  L.  Cas.,  (H. 
&  W.'s  notes),  361,  &t  seq. 


THE  LAW  OF  DAMAGES. 


Actionable  Injury— Injuria  and  Damnum— Damnum,  etc. 


CHAPTEK  III. 


OF  THE  INJURY  BY  THE  DEFENDANT. 

Sectional.    Legal  or  Actionable  Injury. 

42.  The  terms  Injuria  and  Damnum. 

43.  Damnum  Absque  Injuria. 

§  41.  Legal  or  Actionable  Injury.— We  have  already 
observed  that  there  is  no  wrong  without  a  remedy,  and  that 
the  remedy  which  the  law  aims  to  give  is  commensurate  with 
the  loss  sustained.  This  applies  not  only  to  breaches  of  con- 
tracts and  personal  injuries,  but  generally  to  the  misfeasance, 
nonfeasance,  and  malfeasance,  of  those  having  a  duty  to  per- 
form, and  by  reason  of  which  an  individual  sustains  a  loss. 

But  there  is  a  class  of  cases  in  which,  although  damages 
may  be  sustained  by  the  plaintiff,  it  is  not  through  anything 
which  in  law  is  considered  an  injury,  and  therefore  no  action 
can  be  maintained  therefor.  Such  damages  are  damnum 
absque  injuria^  for  which  no  compensation  can  be  recovered. 

§  42.  The  terms  Injuria  and  Damnum.— In  a  strict 
leo-al  sense,  injuria  is  a  wrongful  act  or  tort,  that  relates  to 
the  defendant.  Damnum  is  the  loss  sustained,  or  liarm  done, 
as  a  consequence  of  an  injury,  and  relates  to  the  phaintiif. 
But  these  terms  are  frequently,  if  not  generally,  used  in  a 
different  sense. 

§  43.  Damnum  Absque  Injuria.— The  injury  must,  as 
we  have  shown,  not  only  be  a  violation  of  a  right,  which  the 
plaintiff  is  entitled  to  enjoy,  but  it  is  essentilil  to  the  main- 


mJUEY  BY  DEFENDANT.  39 


Damnum  Absque  Injuria. 


tenance  of  an  action  for  the  same    that    the  plaintiff  suffer 
legal  damages  thereby. 

Tliere  are  a  large  number  of  moral  acts  clone,  and  accidents 
and  casualties  occurring,  and  there  may  be  a  lawful  use  of 
one's  own  property  by  which  losses  occur  to  others,  but  for 
which  the  law  affords  no  remedy.  They  are  damum  absque 
injuria.  For,  though  loss  may  be  sustained  in  such  cases,  it 
is  the  result  of  no  legal  wrong  or  injury. 

"  Thus,"  remarks  Mr.  Herbert  Broom,  in  his  valuable  work 
on  Leo-al  Maxims,  "  the  establishment  of  a  rival  school,  which 
draws  away  scholars  from  a  school  previously  established,  is 
illustrative  of  such  a  loss.  So,  a  man  may  lawfully  build  a 
M'all  on  his  own  grounds  in  such  a  manner  as  to  obstruct  the 
light  of  his  neighbor,  who  may  not  have  acquired  a  right 
thereto  by  grant  or  adverse  use;  he  may  obstruct  the  prospect 
from  his  neighbor's  house;  he  may  build  a  mill  near  thfe  mill 
of  his  neighbor,  to  the  grievous  damage  of  the  latter  by  loss 
of  custom;  he  may,  by  digging  in  his  own  land,  intercept  or 
draw  off  the  water  collected  from  under-ground  springs  in  his 
neighbor's  well.  In  these  and  similar  cases,  the  incon- 
venience caused  to  his  neighbor,  falls  within  the  description 
oi  damnum  absque  injuria,  which  cannot  become  the  grounds 
for  an  action."  ' 

So,  where  neither  party  is  in  fault,  and  an  accident  to  one 

occurs  through  the  acts  of  both,  it  is  damnum  absque  injuria, 

and  the  party  damaged  cannot  recover."     So,  no  action  will  lie 

ao-ainst  a  railroad  or  turnpike  company,  for  building  a  road 

with  proper  care  and  prudence,  which  is  authorized  by  statute, 

thouirh  property  in  the  vicinity  is  damaged  thereby,  as  the 

act  in  either  case  is  lawful,  and  any  damages  arising  from  its 

proper   construction   on   its   own   land,  would  be   damnum 

absque  injuria.^ 

'  Broom's  Legal  Maxims,  197,  et  seq. 
=  Howlancl  v.  Vincent,  10  Met.,  571. 
3  Drake  v.  Hudson,  etc.,  R.  Co.,  7  Barb.,  508. 


40  THE  LAW  OF  DAMAGES. 


Damnum  Absque  Injuria. 


And  it  has  been  held  that,  in  the  absence  of  any  negligence, 
nnskillfulness  or  mismanagement  of  a  railroad  company,  in 
the  construction  of  an  embankment  for  the  bed  of  its  railroad, 
over  land  through  which  the  railroad  passed,  and  through 
which  there  was  no  natural  channel  for  the  passage  of  water, 
the  injury  done  by  such  embankment  in  causing  water  to 
overflow  the  land  of  the  adjoining  proprietors,  must  be  con- 
sidered as  the  natural  consequence  of  what  the  railroad  com- 
pany had  a  lawful  right  to  do,  by  the  condemnation  of  the 
land  and  the  payment  of  damages  therefor,  and  that  subse- 
quent damage  sustained  thereby,  by  the  adjoining  proprietors, 
must  be  treated  as  damnum  absque  injiirm* 

So,  where  an  incoporated  town  or  city  grades  its  streets,  or 
changes  its  grade  so  as  to  leave  the  lots  of  the  adjoining  pro- 
prietor either  above  or  below  the  grade,  and  thereby  greatly 
depreciates  their  value,  it  is  damnum  absque  injuria,  for 
which  no  damages  can  be  recovered/ 

4  Clark  V.  Hannibal,  etc.,  R.  Co.,  36  Mo.,  202.  See,  also,  McCormic  v. 
The  Kas.  C,  etc.,  R.  Co.,  57  Id.,  438. 

s  Callender  v.  Marsh,  1  Pick.,  418;  Griggs  v.  Foot,  4  Allen,  195;  Benja- 
min v.  Wheeler,  8  Gray,  409;  Green  v.  Reading,  9  Watts,  382;  approved  20 
How.  (U.  S.),  149;  Reading  v.  Keppleman,  61  Pa.  St.,  233;  Henry  v.  Pitts- 
burgh, etc.,  Co.,  8  W.  &  S.  (Pa.).  85;  O'Conor  v.  Pittsburgh,  18  Pa.  St.,  187; 
approved  in  Smith  v.  Washington,  20  How.  (U.  S.),  135;  Macy  v.  The  City 
of  Indianapolis,  17  Ind.,  267;  Terre  Haute  v.  Turner,  36  Id.,  522;  Hoffman 
V.  St.  Louis,  15  Mo.,  651;  Radcliffe  v.  The  Mayor  of  Brooklyn,  4  Comst., 
195;  Graves  v.  Otis,  2  Hill.,  466;  Wilson  v.  Mayor,  etc.,  1  Den.,  595;  Mills 
v.  Brooklyn,  32  N.  Y.,  489;  Waddellv.  Mayor,  etc.,  8  Barb.,  95;  Reynolds 
V.  Shreveport,  13  La.  An.,  426;  Rome  v.  Omberg,  28  Geo.,  46;  Roll  v.  Augusta, 
34  Id..  326;  Skinner  v.  Bridge  Co.,  29  Conn..  523;  Summers  v.  Camden.  26 
Ark.,  276;  Ellis  v.  Iowa  City,  29  la.,  229;  Dorman  v.  Jacksonville,  13  Fla., 
538;  BurHngton  v.  Gilbert,  31  la.,  356;  White  v.  Yazoo  City,  27  Miss.,  327; 
Commissioners  v.  Withers,  29  Id.,  21;  Murphy  v.  Chicago,  29  111.,  279; 
Roberts  v.  Chicago.,  26  Id..  249;  Humes  v.  Mayor,  etc.,  1  Humph.  (Tenn.), 
403;  Hovey  v.  Mayo,  4:3  Me.,  322;  Taylor  v.  St.  Louis,  14  Mo.,  20;  Schatt- 
ner  v.  Kansas  City,  53  Id.,  162.  But  see  Kevins  v.  Peoria,  41  111.,  502; 
Aurora,  etc.,  v.  Reed,  57  Id.,  29;  Aurora  (City  of)  v.  Gillett,  56  Id.,  132, 
■where  the  doctrine  would  appear  to  be  somewhat  qualified. 

In  a  recent  case  in  Michigan,  in  an  action  for  damages  against  a  city  for 
an  injury  to  property,  caused  by  changing  the  grade  of  a  street,  the  learned 


INJURY  BY  DEFENDANT.  41 

Damnum  Absque  Injuila. 

§  44.  Where  an  act  authorized  by  law  gives  rise  to  dama- 
ges, it  is  generally,  as  we  have  seen,  dainnum,  absque  injuria; 
and  wherever  an  unauthorized  act  results  in  detriment  or  loss 
to  another,  if  it  is  not  a  legal  damage,  it  is  injuria  sine 
damno.^  The  injury  to  the  plaintiff  must  be  such  as  the  law 
regards  as  an  injury,  and  as  we  have  already  noticed,  it  is  not 
every  loss  that  results  to  the  plaintiff  through  the  act  of  the 
defendant,  for  which  damages  may  be  recovered. 

Judge  Cooley  remarks:  "The  weight  of  authority  against  this  action  is 
overwhelming."  City  of  Pontiac  v.  Carter,  Am.  Law  Times,  Aug.,  1875. 
See,  also,  The  Plate  Glass  Co.  v.  Meredith,  4  T.  R.  794;  Bolton  v.  Crowther, 
2  B.  c^:  C,  703;  The  King  v.  The  Coms.  of  Sewers,  8  Id.,  355;  Macy  v. 
Indianapolis,  17  Ind..  267;  Fayette  v.  Bush,  19  Id.,  326;  Rounds  v.  Mum- 
ford,  2  R.  I.,  154;  Keasy  v.  Louisville,  4  Dana,  (Ky.),  154;  Alexander  v. 
Milwaukee,  16  Wis.,  247;  Derman  v.  Jacksonville,  13  Fla.,  538;  7  Am.  R., 
233;  Simmons  v.  Camden,  26  Ark.,  276;  7  Am.  Rep.,  820;  Goszler  v.  George- 
town, 6  Wheat.,  593. 

The  only  exception  to  this  general  rule  in  this  country  is  in  Ohio,  (and 
perhaps  as  we  have  noticed  in  Illinois),  where  a  qualification  of  the  rule  has 
been  made,  giving  the  right  of  action  for  injuries  in  such  cases,  especially 
by  the  later  decisions,  where  improvements  have  been  made  in  accordance 
with  an  established  grade,  and  the  damage  arises  from  a  change  of  grade,  in 
which  case  the  injured  party  has  been  allowed  to  recover.  McCombs  v.  Akron, 
15  Ohio,  474.  But  this  case  is  made  to  rest  on  Rhodes  v.  City  of  Cleveland, 
10  Id.,  159,  which  relates  to  the  flooding  of  land  by  a  city.  See,  also,  Akron 
V.  McComb,  18  Id.,  229;  Crawford  v.  Delaware,  7  Ohio  St.,  459.  In  this 
last  case,  the  right  to  recover  is  limited  to  cases  of  injury  arising  from  a 
change  of  the  grade. 

In  Iowa,  the  general  doctrine  has  been  recognized  in  several  cases.  But 
a  recent  Statute  provides:  "  Where  any  city  or  town  shall  have  established 
the  grade  of  any  street  or  alley,  and  any  person  shall  have  built  or  made 
any  improvements  on  such  street  or  aUey,  according  to  the  estabUshed  grade 
thereof,  and  said  city  or  town  shaU  alter  said  estabUshed  grade  in  such  a 
manner  as  to  injure  or  diminish  the  value  of  said  property,  said  city  or  town 
shall  pay  to  the  owner  or  owners  of  said  property  so  injured  the  amount  of 
such  damage  or  injury."     *    *    *    Sec.  469,  Code  of  Iowa,  1873. 

In  view  of  the  frequent  hardships  that  result  from  the  change  of  the  grades 
of  streets  in  our  cities  and  towns,  some  statutory  provisions  on  this  subject 
seems  to  be  demanded,  and  the  provision  of  the  Iowa  Statute  is  commended, 
as  affording  an  adequate  remedy  and  a  just  protection  in  such  cases. 

*  Barbin  V.  Police  Jury,  etc.,  15  La.  An..  559;  Donovan  v.  The  City  of 
Kew  Orleans,  11  Id.,  711. 


42  THE  LAW  OF  DAMAGES. 


Compensation— Causa  Proxima. 


OHAPTEE  lY. 


OF  COMPENSATIOI!^  AS  A  EULE— THE  LIMITATION" 
OF  DAMAGES. 

Section  45.    Compensation — Consideration  of  the  Maxim,  Causa  Proxima. 

46.  Application  in  case  of  a  Breach  of  Contract. 

47.  In  case  of  Failure  to  Deliver  Property. 

48.  Not  always  thus  Limited  in  Torts. 

49.  Natural  and  Direct  Consequences  Explained  and  Illustrated. 

50.  Injury  from  Fire — "Where  the  Negligence  too  Remote  and 

where  not. 
52.    Conflict  of  Decisions — Irreconcilable. 

§45.  Compensation— Consideration  of  the  Maxim 
Causa  Proxima. — We  Lave  stated  that  compensation  is  the 
general  principle  in  the  measure  of  damages.  The  party  who 
has  sustained  loss  from  the  injury  of  another,  should  be  indem- 
nified for  the  same.'  The  main  difficulty  is  in  the  application 
of  the  maxim,  in  determining  what  near  or  remote  losses,  occur- 
rino-  or  caused  by  the  injury,  the  defendant  is  responsible  for. 

In  a  great  majority  of  cases,  especially  in  actions  for  torts, 
the  maxim,  in  its  literal  sense,  is  much  too  restricted.  Even  in 
actions  for  breaches  of  contracts,  for  the  non-payment  of  money, 
it  has  application  only  on  the  theory  that  the  principal  and 
interest  is  the  loss  sustained,  and  that  that  is  the  proximate 
consequence  of  the  wrong.  But,  under  the  decisions  of  the 
courts,  the  maxim  has  acquired  a  technical  juridical  meaning, 
and  serves  a  purpose  in  determining  questions  of  damages, 

'  Allison  V.  Chandler,  11  Mich.,  542. 


COMPENSATIOI^.  i3 


Breach  of  Contract. 


which  cannot  be  entirely  ignored  in  a  treatise  on  the  subject 
of  damages. 

The  maxim  has  been  thus  construed,  as  we  have  suggested, 
to  give  compensation  to  a  party  sustaining  loss  by  an  injury, 
where  the  injury  is  not  strictly  the  proximate  cause  of  the  loss; 
but  the  loss  is  the  direct  and  natural  result  of  the  injury,  or 
part  of  a  chain  of  results.  This  is  illustrated  by  the  famous 
squib  case,  where  the  defendant  threw  a  squib  into  a  market 
house,  which  fell  on  the  stall  of  a  vendor  of  gingerbread,  and 
he,  to  save  himself  from  injury,  threw  it  off,  and  it  fell  on  an- 
other stall  in  the  market  house,  the  proprietor  of  which  also 
threw  it  off,  and  it  struck  the  plaintiff  and  put  out  his  eye. 
Here  were  two  intervening  distinct  acts,  and  causes  of  the  final 
loss  and  damage,  between  the  original  wrong  and  the  damage ; 
but  it  was  held  to  be  the  direct  act  of  the  defendant.'  The 
original  act,  in  this  case,  could  hardly  be  considered  either  the 
proximate  cause,  in  any  strict  sense,  of  the  loss,  nor  would  the 
loss  appear  to  be  the  direct  and  natural  result  of  the  act.  It 
is  true  the  relation  of  cause  and  effect  existed,  in  one  sense, 
between  the  original  wrong  and  the  loss;  but  the  damage  may 
more  i>i'operly  be  considered  a  result  of  a  chain  of  causes  and 
effects,  of  which  the  wrongdoer  was  the  original  active  cause,  and 
without  which  wrongful  act  the  loss  would  not  have  occurred.  . 

§  46.  Application  in  case  of  a  Breach  of  a  Contract 
for  the  Payment  of  Money.— When  applied  as  a  limitation 
of  damages  for  a  breach  of  contract  for  the  payment  of  money, 
the  maxim  and  general  rule  are  understood  to  mean  the  actual 
pecuniary  loss  directly  sustained;  and  that  is  the  principal 
and  interest  due.'     And,  in  such  cases,  the  contract  itself  fur- 

=  Scott  V.  Shepbard,  2  W.  Black,  892,  s.  c.  3  Wils.  403 
3  Gay  V.  Franklin,  5  Cal.,  416;  Robert  v.  Kimberly,  1  Root,  (Conn.)  491; 
Day  V.  Leavenwortb,  Id.,  519;  Osgood  v.  McConnell,  32  lU.,  74;  Houston  v. 
Noble,  4  J.  J.,  Mon.  (Ky.)  130;  Thayer  v.  Hedges,  23  Ind..  141;  Robinson 
V.  Varell,  16  Texas,  382;  Curtis  v.  Whipo,  1  Root .,  (Conn.)  445.  Edwards  on 
Bills  and  Notes,  708,  et  seq.  See  also  for  a  full  consideration  of  this  subject, 
post,  Chap.  11. 


44  THE  LAW  OF  DAMAGES. 


Failui-e  to  Deliver  Pi-operty— Proximate  and  Natural  Consequences,  etc. 


nishes  the  data  from  which  damages  under  this  rule  can  be 
estimated ;  and  the  question  of  damages  is  practically  a  ques- 
tion of  law. 
§  47.    In  Cases  of  Failure  to  Deliver  Property.— In 

cases  of  the  failure  to  deliver  property,  where  the  consider- 
ation has  been  paid,  the  purchaser  may  rescind  the  contract 
and  recover  the  amount  of  the  consideration  paid,  or  recover 
the  value  of  the  property,  at  his  option,  as  we  shall  hereafter 
notice." 

§  48 .  Damages  not  always  limited  to  Proximate  or 
Natural  Consequences  in  cases  of  Torts— According  to 
our  fourth  rule  of  damages,  in  the  analysis  and  classification 
we  gave  in  the  introductory  chapter,"  the  liability  for  loss,  is 
not  always  confined  literally  to  the  proximate  or  immediate 
consequence  of  the  wrong. 

But,  in  torts,  the  wrong  doer  may  be  liable  for  remote  conse- 
quences, provided  they  were  probable  to  result  from  the  wrong, 
or  are  the  direct  and  natural  results  of  it;  the  limit  of  such  lia- 
bility depending  upon  the  aggravation,  and  the  motives  of  the 
wrongdoer,  or  the  degree  of  negligence  or  malice  manifested 
by  the  circumstances  connected  with  the  tort.^ 

§49.  Natural  and  Direct  Consequences  Explained  and 
Illustrated. — The  term  natural  consequences,  in  the  legal 
sense  here  used,  signifies  according  to  the  usual  course  of 
things.  The  extended  rule  in  such  cases  was  recognized  in 
Rigly  V.  Heivett.  The  action  was  for  an  injury  to  the  plaintiff, 
caused  by  the  negligent  driving  of  the  defendant's  omnibus. 
Pollock,  C.  B.,  in  delivering  the  opinion  of  the  court  remarks: 
"I  am  disposed  not  quite  to  acquiesce,  to  the  full  extent  of  the 
proposition,  that  a  person  is  responsible  for  all  the  possible 

4  ^QQpost,  Chap.  12.  Also  Leland  v.  Stone,  10  Mass.,  459;  Taft  v.  Williams, 
15  Ohio,  123;  Clark  v.  Moore,  3  Mich.,  55;  Cuddy  v.  Mayor,  12  Id.,  368. 
s  §  32. 
*See,  post,  Chaps.  5  and  6. 


COMPENSATION.  45 

Natural  and  Direct  Consequences. 

consequences  of  liis  negligence.  I  wish  to  guard  against  lay- 
ing down  a  proposition  so  universal;  but  of  this  I  am  quite 
clear,  that  the  person  who  does  a  wrong  is  at  least  responsible 
for  all  the  mischievous  consequences  that  may  reasonably  be 
expected  to  result,  under  ordinary  circumstances  from  such 
misconduct.'" 

And  where,  in  an  action  of  trespass  for  forcibly  invading  a 
plantation  and  carrying  away  slaves,  a  jury  found  that  by  rea- 
son of  the  wrongful  abduction  of  them,  a  neighbor's  cattle  de- 
stroyed the  plaintiff's  corn,  and  a  flood  in  the  river  swept  away 
a  quantity  of  his  wood,  it  was  held  proper  to  include  the  value 
of  these  things  in  the  damages  assessed.'  But  where  a  singer  in 
the  plaintiff's  theater  had  been  libelled,  and  a  suit  was  brought 
by  the  proprietor  of  the  theater  against  the  publisher,  and  it  was 
alleged  that,  by  reason  of  the  libel,  the  singer  had  been  deter- 
red from  singing,  whereby  his  profits  were  lost,  it  was  held  by 
Lord  Kenyon,  that  the  damages  were  too  remote;  that  if  dam- 
ages had  thereby  occurred,  it  was  occasioned  by  the  vain  fear 
or  caprice  of  the  actor.^  So  where  a  horse,  being  driven  with 
due  care,  became  frightened  by  the  striking  of  the  vehicle  he 
was  drawing  against  a  defect  in  the  highway,  which  it  was 
the  duty  of  the  defendant  to  keep  in  repair,  and  freeing  him- 
self from  the  control  of  the  driver,  at  a  distance  of  fifty  rods 
from  the  defect,  injured  the  plaintiff  who  was  on  foot  in  the 
highway,  and  who  was  using  due  care;  it  was  held,  that  the 
defendant  was  not  responsible  for  the  injury.' 

7  5  Exch.,  240.  See  also  Greenland  v.  Chaplin,  5  Id.,  243;  Poth.  on  Ob.  fby 
Evans),  Part  1,  C.  2;  2  Parsons  on  Con.,  457,  (4  ed.)  and  notes.  Goodloe 
V,  Rogers,  10  La.  An.,  631. 

-  8  McAfFee  v.  CrofFord,  13  Howard,  (U.  S.),  447.  See  also  Parmlee  v.  Wilks, 
22  Barbour,  (N.  Y.),  539. 

9  Ashley  v.  Han-ison.  Peak.  N.  P.,  193,  s.  c,  1  Esp.,  48.  See  also  Taylor  v. 
Neri,  1  Esp.,  386.  But  should  not  this  question  have  been  submitted  to  a 
jury? 

'  Marble  v.  Worcester,  4  Gray,  395.  But,  in  a  recent  case  where  a  horse 
became  frightened  by  the  striking  of  the  carriage  to  which  he  was  attached 


46  THE  LAW  OF  DAMAGES. 

iDjury  from  Fire— Where  Negligence  too  Kemote— "Wliere  not. 

And,  in  an  action  for  slander,  wliere  special  damage  was 
claimed,  it  was  lield,  that  the  action  could  not  b'e  sustained  by 
proof  that  the  damage  was  caused  bj  the  repeating  of  the  slan- 
derous words,  by  a  third  person,  as  the  words  of  the  defend- 
ant, but  without  his  authority/ 

So,  where  a  drafted  man  deserted  before  being  mustered 
into  the  service,  and  the  plaintiff,  in  consequence,  was  drawn 
and  obliged  to  serve  in  the  army  in  place  of  the  deserter, 
and  brought  a  suit  against  him  for  the  damages  sustained 
thereby,  it  was  held,  that  the  damages  were  too  remote  and 
contingent  to  sustain  the  action/ 

§  50.  Injury  from  Fire— where  Negligence  too  Remote 
— wh^re  not. — And  where,  by  the  mere  negligence  of  another, 
a  building  was  burned,  and  the  fire  spread  to  and  destroyed 
an  adjoining  house,  the  negligence  was  held  too  remote  to 
give  the  owner  of  the  latter  house  a  remedy  for  his  loss 
against  the  party  by  whose  negligence  the  fire  originated.^ 

against  an  obstruction  in  the  hig-hway,  and  became  uncontrollable  and  ran 
away  throwing  the  driver  out  and  injuring  him,  at  a  point  over  one  hundred 
and  twenty-five  feet  from  the  obstructions,  it  was  held  that  the  obstruction 
was  the  proximate  cause  of  the  injury,  and  a  verdict  of  $900  therefor  in  the 
court  below  was  sustained.  Clark  v.  Inhabitants  of  Lebanon,  Pacific  Law 
Reporter,  Aug.  24,  1875.  See  also,  Wiley  v.  Belfast,  61  Me.,  569.  In 
Marble  v.  Worcester,  4  Gray,  supra,  it  was  a  stranger  who  was  injured 
by  the  accident;  but  it  was  conceded  that  if  the  injury  had  been  to  "the 
driver  or  one  riding  in  the  sleigh,"  there  would  have  been  no  question  of 
the  liability  of  the  defendant. 

»  Ward  V.  Weeks,  7  Bing.,  211. 

3  Dennis  v.  Larkin,  19  Iowa,  434. 

*  Ryan  v.  N.  Y.  Cent.  R.  Co.,  35  N.  Y.,  210;  Penn.  R.  Co.  v.  Kerr,  62  Pa. 
St.,  353.  See  also,  Morrison  v.  Davis  &  Co.,  20  Id.,  171.  In  the  latter  case 
LowRiE,  J.,  remarks:  "There  are  often  very  small  faults  which  are  the 
occasion  of  the  most  serious  and  distressing  consequences.  Thus  a  momen- 
tary act  of  carelessness  set  fire  to  a  little  straw,  and  that  set  fire  to  a  house, 
and  by  an  extraordinary  concurrence  of  very  dry  weather  and  high  winds, 
with  this  fault,  one-tliird  of  a  city,  Pittsburg,  was  destroyed.  Would  it  be 
right  that  this  small  act  of  carelessness  should  be  charged  with  the  whole 
valueof  the  property  consumed?"    Should  the  careless  act  of  the  woman 


COMPENSATION.  47 


Injury  from  Fire— Where  Negligence  too  Eemote— Where  not. 


But,  in  Massacliusetts,  where  under  a  statute  making  rail- 
road corporations  responsible  for  fires  communicated  from 
their  locomotives,  it  was  held,  in  a  case  where  the  fire  was 
originally  caused  by  a  locomotive  engine  and  the  fire,  on  its 
way  to  the  plaintiff's  premises,  passed  over  the  premises  of 
three  or  four  different  persons,  being  fed  by  grass,  stubble,  and 
wood-land,  until  it  reached  the  plaintiff's  premises  where  it 
burned  a  large  quantity  of  wood,  that  the  company  was  liable 
for  the  damages." 

And,  in  New  York,  where  through  the  carelessness  of  the 
defendant,  (a  railroad  company,)  coals  were  dropped  from  its 
locomotive  engine,  which  set  fire  to  the  ties  of  the  track,  and 
from  thence  spread  to  the  adjacent  premises  of  the  plaintiff  and 
burned  wood  thereon,  it  was  held,  that  the  owner  of  the  wood 


■who  originated  the  great  fire  at  Chicago,  make  her  liable  in  damages  for 
all  the  losses  that  resulted  therefrom?  In  Illinois,  the  question  of  negli- 
gence in  such  a  case,  and  whether  the  loss  is  too  remote,  is  deemed  proper  to 
be  left  to  the  jury,  as  a  question  of  fact.  Toledo,  Peoria  &  Warsaw  R.  Co. 
V.  Pindar,  53  111.,  447.  See  also,  Ohio  &  Miss.  R.  Co.  v.  Shanefelt,  47  Id., 
497;  111.  Cent.  R.  Co.  v.  Nunn,  51  Id..  78.  And  the  same  doctrine  seems  to 
be  held  in  Wisconsin,  Kellogg  v.  Chicago  &  N.  W.  R.  Co.,  26  Wis.,  223; 
2)ost,  §  664. 

5  Perley  v.  Eastern  R.  Co.,  98  Mass.,  414.  See  also,  IngersoU  v.  Stock- 
bridge  &  Pittsfield  R.  Co.,  8  Allen,  438.  The  statute  referred  to  provides: 
"  Every  corporation  shall  be  responsible  in  damages  to  any  person  or  corpo- 
ration whose  buildings  or  other  property  may  be  injured  by  fire,  communi- 
cated by  its  locomotive  engines."  Gen.  Stat.  Mass.  C,  63.  §  101.  In  Periey  v. 
Eastern  Railroad  Co.,  supra,  the  court  say:  "If  when  a  cinder  escapes, 
the  effect  which  it  produces  upon  the  first  combustible  substance  against 
which  it  strikes  is  proximate,  the  effect  must  continue  to  be  proximate  as  to 
every  thing  which  the  fire  consumes  in  its  direct  course.  This  must  be  so, 
whether  we  regard  the  fire  as  a  combination  of  the  burning  substance  with 
the  oxygen  of  the  air,  or  look  merely  at  its  visible  action  and  effect.  As  a 
matter  of  fact  the  injury  to  the  plaintiff  was  as  immediate  and  direct  as  an 
injury  would  have  been  which  was  caused  by  a  bullet  fired  from  the  train, 
passmg  over  the  intermediate  lots,  and  wounding  the  plaintiff  as  he  stood 
upon  his  own  lot."  From  this  language  it  may  be  inferred  that  the  statute, 
in  the  opinion  of  the  court,  did  not  affect  the  general  rule  limiting  liability 
to  the  proximate  cause. 


48  THE  LAW  OF  DAMAGES. 


Injury  from  Fire— Where  Negligence  too  Eemote— Where  not. 


might  recover  against  the  railroad  company  for  damages  thus 
caused.' 

And  in  the  Court  of  Exchequer  Chamber  in  England,  where 
it  appeared  that  a  railroad  company's  servants  had  cut  grass 
and  trimmed  the  banks  and  hedges  at  the  side  of  the  railway, 
and  had  collected  the  grass  and  hedge  trimmings  into  heaps 
at  the  road  side,  where  they  remained  during  extremely  hot 
weather  for  fourteen  days,  and  were  then  ignited  by  sparks  or 
cinders  from  the  company's  locomotive  engine  in  passing,  and 
the  fire  after  burning  the  heaps  and  the  adjoining  hedge, 
passed  over  a  stubble  field  and  public  road,  in  spite  of  all  efforts 
of  the  company's  servants  to  subdue  it,  and  at  a  distance  of  two 
hundred  yards  from  the  railroad,  communicated  with  the 
plaintiff's  cottage  and  destroyed  it  with  the  furniture  it  con- 
tained, a  majority  of  the  court  held  that  these  facts  constituted 
evidence  of  negligence  to  go  to  the  jury,  but  the  question  was 
not  raised  whether  the  loss  was  too  remote  to  be  recovered.' 

§  51.  In  a  recent  case  in  Wisconsin  the  question  of  liabil- 
ity of  a  railroad  company  for  a  loss  by  fire,  not  directly  occa- 
sioned by  the  negligence  of  the  company  was  discussed,  and 
the  doctrine  oi Byan  v.  New  York  Central  R.  Co.,  ^nil  Penn- 
sylvania Pl.  Co.  v.  Kerr,  above  cited,  was  disapproved;  and, 
after  a  thorough  examination  of  the  question,  a  majority  of  the 
court  held,  that  the  questions  of  negligence  and  contributory 
negligence  were  properly  for  the  jury  to  determine,  and  that 
"the  maxim  causa  proxima  et  non  remota  spectatur,  is  not 
limited  by  time  or  distance,  nor  by  the  succession  of  events;" 
that  an  efficient  adequate  cause  being  found,  it  must  be  deemed 
the  true  cause,  unless  some  other  cause,  not  incidental  to  it 
but  independent  of  it,  is  shown  to  have  intervened  between  it 

6  Field  V.  The  N.  Y.  C.  R.  Co.,  32  N.  Y.  339.    See  also,  Webb  v.  The 
Rome,  Watertown  &  Ogdensburg  R,  Co.,  3  Lans.,  (N.  Y.,)  453. 

7  Smith  V.  London  &  Southwestern  R.  Co.,  5  L.  R.  C.  P.,  68;  18  W.  R., 
343;  21  L.  T.,  n.  s.,  668;  affirmed  on  appeal,  19  W.  R.,  230.  Exch.  Cham. 


COMPENSATION.  49 

Conflict  of  Decisions  Irreconcilable. 

and  the  result;  and  that  the  maxim  includes  liability  for  all 
actual  injuries  which  are  the  natural  and  probable  result  of 
the  wrongful  act  or  omission  complained  of,  or  were  likely  to 
ensue  from  it  under  ordinary  circumstances. 

The  court  further  held,  that  drought  and  high  wind,  which 
the  evidence  showed  were  prevailing  at  the  time,  were  not 
extraordinary  but  ordinary  circumstances  within  the  meaning 
of  the  rule;  and  that  the  foct  that  the  property  destroyed  w^as 
distant  from  the  defendant's  road,  and  that  the  fire  reached 
it  only  by  passing  through  intervening  fields,  did  not  make 
the  loss  too  remote  to  allow  a  recovery  therefor.* 

§    52.    Conflict  of  the  Decisions  Irreconcilable.— It  is 

diflicult  to  reconcile  these  latter  cases  on  principle,  with  the 
cases  oi  I^yan  v.  The  N.  Y.  Central  R.  Co.^  supra,  and  Penn. 
M.  Go.  V.  Kerr^  supra.  In  those  cases  the  court  determined 
as  a  question  of  law,  that  the  loss  was  too  remote;  that  it 
was  the  result  of  secondary  causes  and  not  the  direct  and 
immediate  result  of  the  negligence;  while  in  the  subsequent 
cases  referred  to,  on  facts  that  could  not  be  considered  as 
materially  difiBrent,  or  as  distinguishing  them  from  these 
cases,  so  far  as  principle  is  concerned,  the  courts  refused 
to  hold  that,  as  a  matter  of  law^,  the  losses  were  too  remote^ 
And  in  Perley  v.  Eastern  P,  Co.,  siipra,  Chapman,  C.  J., 
who  delivered  the  opinion  of  the  court,  did  not  concur 
in  the  reasoning  of  the  court  in  Ryan  v.  JV.  Yi  Central  Railroad 
Company',  and  it  is  also,  as  we  have  seen,  disapproved    in 

8  Kellogg  V.  The  Chicago  &  N.  W.  R.  Co.,  26  Wis.,  223.  See  also,  Mar- 
tin V.  West.  U.  R.  Co.,  23  Id.,  437;  Piggott  v.  Eastern  Counties  R.  Co.,  54 
E.  C.  L.,  228;  Vaugh  v.  Manlove,  7  C.  &  P.,  525;  32  E.  C.  L.,  613;  Hewey 
V.  Nourse,  54  Me.,  256;  Bachelderv.  Heagan.  18  Id.  32;  Barnard  v.  Poor,  21 
Pick.  378;  Fero  v.  Buffalo  &  State  Line  R.  Co.,  22  N.  Y.,  209;  Fremantle  v. 
The  London  &  N.  W.  R.  Co.,  100  E.  C.  L.,  88;  Hart  v.  Western  R.  Co.,  13 
Met.,  99;  Ingersol  v.  Stockbridge  &  Pitts.  R.  Co.,  8  Allen.  438;  Perley  v. 
Eastern  R.  Co.,  98  Mass.  414;  Hooksett  v.  Concord  R.,  38  N.  H.,  242; 
McCready  v.  Railroad  Co.,  2  Stobh.,  (L.  R.)  356;  Cleveland  v.  Grand  Trunk 
R.  Co.,  42  Vt.,  449.  See  also,  post,  Chap.  22. 
4 


50  THE  LAW  OF  DAMAGES. 

Conflict  of  Decisions  Irreconcilable. 

the  cases  we  have  cited  in  Illinois  and  Wisconsin;  and  the 
weight  of  authority,  if  not  of  reason,  would  seem  to  sustain 
the  doctrine  of  liability  for  such  losses,  as  direct  and  natural, 
and  not  too  remote  consequences  of  the  original  act,  as  a  mat- 
ter of  law. 

In  the  following  cases  the  damages  were  held  to  be  too 
remote  as  a  matter  of  law.  Thus,  in  an  action  for  seduction, 
loss  of  service  resulting  from  illness  of  the  woman  seduced, 
caused  by  distress  of  mind,  owing  to  the  desertion  of  the 
seducer,  or  of  illness  in  consequence  of  being  threatened  with 
exposure  in  a  suit  against  the  defendant  for  the  seduction;' 
and  in  an  action  for  a  malicious  prosecution,  whereby  the 
plaintiff  was  driven  to  an  assignment,  and  loss  occurred  in  the 
sale  of  goods  under  the  assignment,*  and  in  an  action  for 
damages  resulting  from  a  railroad  collision  where  it  appeared 
from  the  character  of  the  fracture  of  the  plaintiff's  leg, 
that  it  was  probable  that  a  second  fracture  would  take  place;' 
these  consequences  and  probable  results  were  held  too  remote 
to  entitle  the  plaintiff  to  recover  therefor. 

§  53.  The  most  difficult  and  perplexing  question  relating 
to  damages  is  the  one  under  consideration.  For  what  conse- 
quences of  a  negligent  act  shall  the  wrongdoer  be  held  respon- 
sible? What  is  the  rule  based  upon  principle  which  shall, 
under  all  circumstances,  be  uniform,  definite  and  just?  It  is 
impossible  to  deduce  one  from  the  conflicting  decisions.  On 
the  one  hand  there  is  a  sentiment,  perhaps  in  accord  with  a 

« Knight  V.  Wilcox,  14  N.  Y.,  413;  Boyle  v.  Brandon,  13  M.  &  W.,  738. 
See  also,  Haynes  v.  Sinclair,  23  Vt.,  108,  where  the  probable  expense  of  sup- 
portinpr  an  illegitimate  child  was  excluded. 

=  Donnell  v.  Jones,  13  Ala.,  490.  See,  also,  the  same  rule  as  recognized  in 
cases  of  peijary,  forgery  and  fraud.  Fitzjohn  v.  McKidder,  2  L.  T.  (N.  S.), 
374;  Bumap  v.  Wright,  14  111.,  301. 

3  Lincoln  v.  Saratoga  &  Schenectady  R.  Co.,  23  Wend.,  425.  See,  for  an 
exposition  of  the  law  on  this  subject,  Stone  v.  Codman,  15  Pick.,  397;  Brown 
V.  Cummings,  7  Allen,  (Mass.),  507. 


COMPENSATIOI^.  51 


Conflict  of  Decisions  Irreconcilable. 


sound  public  policy,  that  the  mere  negligent  tortfeasor  should 
not  be  held  for  all  those  remote,  but  direct  losses  which  may 
result  from  his  negligence.  While  the  doctrine  of  the  court 
in Iiy an  v.  The  New  York  Central  Railroad  Co.^  would  hold  a 
company  responsible  for  a  fire  directly  caused  by  its  negli- 
gence, as  where  a  house  should  be  ignited  by  sparks  blown 
directly  from  the  company's  locomotive,  still  if  the  sparks  first 
ignite  combustible  substances  belonging  to  the  company,  and 
from  thence  fire  is  communicated  to  another's  property  and 
he  sustains  loss,  no  recovery  can  be  had  of  the  company.  In 
case  of  the  willful  firing  of  one's  own  or  another's  building,  a 
more  extended  rule  of  damages  would  be  applicable,  and  the 
willful  wrongdoer  would  be  held  on  general  principles  to  con- 
template all  the  damages  which  legitimately  follow,  and  be 
liable  for  all  the  consequences  of  his  wrongful  act,  however 
remote  the  results  or  overwhelming  the  disaster.'  And,  per- 
haps, we  may  say,  in  the  light  of  the  adjudications  on  this 
subject,  that  the  rule  seems  to  vary  in  different  cases  and  to  be 
limited  or  extend  to  losses  more  or  less  remote,  depending  upon 
the  motives,  or  degree  of  negligence.' 

4  Allison  V.  Chandler,  11  Mich.,  542. 

s  Scott  V.  Shepherd,  2.  Wm.  Bla.,  893;  Vandenburgh  v.  Truax,  4  Denio, 
464;  Guille  v.  Swan,  19  Johns.,  381.    See,  also,;ws«,  Chap.  22. 


52  THE  LAW  OF  DAMAGES. 


Officious  Interference  witli  Property  of  Others, 


OHAPTEE  T. 


ILLUSTRATIONS  OF  A  LAEGER  RULE  OF 
DAMAGES. 

Section  53.    Rule  in  ease  of  Officious  Interference  with  the  Property  of 
Others. 
54.    Gross  Negligence  and  "Willful  "Wrongs. 

57.  Fraud  Generally. 

58.  Fraudulent  Breaches  of  Contracts. 

59.  Breaches  of  Contracts  under  Circumstances  of  Aggravation. 

63.  Distinction  between  Tort  and  Contract  as  to  Motives. 

64.  The  Doctrine  of  the  Common  Law  on  the  Subject — Statutory 

Eeform. 

§  53.  Rule  in  Case  of  Officious  Interference  with  the 
Property  of  Others.— The  ^tended  rule  of  liability  where 
there  is  an  officious  interference  with  the  property  of  others, 
may  be  illustrated  by  the  following  cases: 

Thus,  in  South  Carolina,  where  the  defendant  prevailed 
upon  a  slave  belonging  to  the  plaintiff  to  ride  a  race,  without 
the  consent  of  the  owner,  and  the  slave  was  thrown,  while  so 
doing,  against  a  tree  and  killed,  it  was  held,  that  the  plaintiff 
was  entitled  to  recover  the  value  of  the  slave,  "  on  the  ground 
that  a  man  who  officiously  presumes  to  interfere  with,  or  make 
use  of,  the  property  of  another  without  his  permission,  is 
liable  for  all  the  consequences  of  such  interference  whether 
he  intended  any  injury  or  not.'" 

So,  where  the  plaintiff's  slave  had  been  employed  by  the 
defendant's  agent  on  his  steamboat,  without  the  consent  of  the 

«  Wright  V.  Gray,  2  Bay  (S.  C),  464. 


ILLUSTRATIONS— LAEGER  RULE.  53 

Gross  Negligence  and  Willful  Wrongs. 

plaintiff,  and  the  slave  fell  overboard  and  was  drowned;  it 
was  held,  that  the  defendant  was  liable  for  the  value  of  the 
slave  even  though  it  happened  without  any  misconduct  or 
negligence  on  the  part  of  defendant.^ 

And  where  the  plaintiff's  negro  boy  was  carried  on  a  rail- 
road car,  without  the  consent  of  the  owner,  and  in  jumping 
off  the  car  when  it  was  in  motion,  was  killed,  it  was  held,  that 
the  railroad  company  was  liable  for  the  loss.' 

So,  in  Louisiana,  where  the  owners  of  a  steamboat  suffered 
a  slave  to  be  employed  as  a  hand  on  board,  without  the 
authority  or  consent  of  the  owner,  and  the  slave  was  acci- 
dentally drowned,  it  was  held  that  the  owners  of  the  boat 
were  liable  for  the  value  of  the  slave.^ 

§  54.    Gross    Negligence,   and    Willful    Wrongs.— 

Where  plaintiff^'s  horses  escaped  into  the  fields  of  defendant 
through  a  defective  fence,  which  it  was  his  duty  to  repair,  aiid 
were  killed  by  the  falling  of  a  hay-stack,  which  was  kept  in 
an  improper  and  dangerous  condition,  the  defendant  was  held 
liable  for  the  value  of  the  horses.^ 

So,  where  a  statute  provided  that  a  party,  neglecting  to 
keep  his  part  of  a  fence  in  repair,  should  be  liable  for  all  dam- 
ages done  or  suffered  by  the  adjoining  proprietor  in  conse- 
quence of  such  neglect,  and  the  plaintiff's  horses  escaped  into 
the  defendant's  pasture  through  a  defective  fence,  which  it  was 
the  duty  of  the  defendant  to  maintain,  and  were  gored  by  a 
vicious  bull  of  the  defendant,  the  damages  sustained  by  the 
injury  were  held  to  be  not  too  remote.' 

2  McDamel  v.  Emanuel,  2  Rich.  (S.  C),  455. 

3  Duncan  v.  The  S.  C.  R.  Co.,  2  Id.,  613. 

4  Strawbridge  v.  Turner,  9  La.,  213. 
sPoweU  V.  Salsberry,  2  Younge  &  J.,  391. 

^  Saxton  V.  Bacon,  31  Yt.,  540.  So,  where  the  defendant,  in  whipping  a 
female  slave,  unintentionally,  but  recklessly,  inflicted  blows  upon  her  mis- 
tress, the  liability  of  the  defendant,  in  an  action  by  the  mistress  therefor, 
was  held  not  to  be  limited  to  the  damages  to  her  person,  but  that  the  jury 
might  take  into  consideration  the  mental  anguish  and  wounded  feehngs  of 
the  plaintiff.    West  v.  Forest,  22  Mo.,  344. 


54  THE  LAW  OF  DAMAGES. 

Officious  Interference  witb  Property  of  Others. 

§  55.  In  an  action  for  the  wrongful  taking  of  a  horse  and 
wagon,  where  the  plaintiff  spent  four  days  and  expended  money, 
in  the  search  for  the  same,  it  was  held  proper  to  include  these 
items  as  proper  elements  of  damages.' 

So,  where  natives  on  the  coast  of  Africa  were  deterred  from 
trading  with  the  plaintiff  by  the  defendant's  firing  on  tliem, 
the  plaintiff  was  held  entitled  to  recover  damages  for  a  loss  of 
sales  to  them.' 

So,  where  the  defendant's  servant  left  his  horse  and  cart  in 
a  public  street,  where  children  were  playing,  and  the  plaintiff's 
child,  six  years  old,  got  into  the  cart  and  another  child  led  the 
horse  on,  and  as  the  plaintiff's  son  was  getting  out  he  fell 
and  a  wheel  of  the  cart  ran  over  him  and  broke  his  leg,  the 
defendant  was  held  responsible  for  the  damages.^ 

This  could  only  be  justified  on  the  ground  of  gross  negli- 
gence, and  that  would  appear  in  this  case,  from  the  opinion  of 
Lord  Denman,  C.  J.,  who,  in  delivering  the  opinion  of  the 
court,  remarks:  "  The  most  blameable  carelessness  of  his  (the 
defendant's)  servant  having  tempted  the  child,  *  *  *  lias 
been  the  real  and  only  cause  of  the  mishap." 

And  where  a  dealer  in  drugs  and  medicines  carelessly  labels 
a  deadly  poison  as  a  harmless  medicine,  and  sends  it  so  labeled 
into  market,  he  will  be  liable  to  all  persons  who,  without  fault 
on  their  part,  are  injured  by  using  it  as  such  a  medicine  as  it 
purports  to  be.'  Injury  to  some  one  must  be  expected  in  such 
a  case,  and  a  party  acting  with  such  gross  negligence  is 
responsible  for  all  the  probable  consequences  of  his  act,  and 

^  Bennett  v.  Lockwood,  20  Wend.,  223;  MHler  v.  Garling,  12  How.  Pr. 
R.,  203.    See,  also,  post,  §§  838,  852,  et  seq. 

8  Tarlton  v.  McGarlcy,  Teak,  N.  P.,  205.  See,  also,  111.  Cent.  R.  Co.  v. 
Hutchinson,  47  111.,  408. 

9  Lynch  v.  Nurdin,  1  Q.  B.,  29;  41  Eng.  C.  L.  R.,  422.  See,  also,  Emblen 
V.  Myers,  6  H.  &  N.,  54;  30  L.  J.  Exch.,  71;  8  W.  R.,  665;  BeU  v.  Mid.  R. 
Co.,  9W.  R.,  612. 

'  Thomas  v.  Winchester,  2  Seld.  (N.  Y.),  397.  Sce.^also,  Fleet  v.  Hollen- 
kemp,  13  B.  Mon.,  219. 


ILLUSTRATIONS— LARGER  RULE.  55 


Fraud  Generally. 


even  though  the  drug  may  have  passed  through  many  inter- 
mediate hands  and  sales  before  it  reaches  the  hands  of  the 
injured  person.^ 

§  56.  This  principle  seems  recognized  in  a  great  number 
of  cases, besides  those  referred  to,  which  we  shall  have  occasion 
hereafter  more  fully  to  notice.  Mr.  Sedgwick,  in  his  valuable 
work  on  damages,  in  reference  to  the  subject,  says:  "In 
regard  to  cases  of  deliberate  or  malicious  wrong,  we  have 
already  seen  that  the  law  applies  very  liberal  relief,  and  in 
cases  of  reckless  or  mischievous  acts  injurious  to  others — even 
where  exemplary  damages  are  not  claimed — the  party  in  the 
wrong  is  often  made  answerable  for  consequences  very  remote 
from  the  original  act.'" 

The  foregoing  is,  perhaps,  suihcient  to  illustrate  and  show 
the  foundation  for  the  rule  as  laid  down,  but  no  rule  can 
definitely  fix  the  limit  of  responsibility  in  such  cases.  This 
fact  is  recognized  by  Professor  Parsons,  in  his  valuable 
Treatise  on  Contracts,  where  he  uses  the  following  language 
in  reference  to  this  subject:  "  Not  only  is  there  no  definite 
rule  or  precise  principle  given,  by  which  we  may  measure  the 
nearness  or  remoteness  of  effects  in  this  respect,  for  which  the 
defendant  is  liable,  but  the  highest  judicial  authorities  are  so 
directly  antagonistic,  that  they  scarcely  serve  as  a  guide  to 
lead  us  to  a  conclusion.'"  Again,  he  says:  "  It  is  diflicult 
to  lay  down  a  definite  rule  which  shall  have,  in  all  cases,  prac- 
tical value  and  efficiency  in  determining  for  what  consequences 
of  an  injury  a  wrongdoer  is  to  be  held  responsible.'" 

§  57.  Fraud  Generally.— Where  the  plaintiff  purchased 
sheep  of  the  defendant,  who  fraudulently  concealed  the  fact 
that  they  were  infected  with  a  contagious  disease,  and  the 

=  Piper  V.  Menifee,  12  B.  Mon.,  465;  2^ost,  §  664. 

3  Sedg.  on  Dam.,  79  and  88. 

4  2  Pars,  on  Con.,  456. 
s  2  Pars,  on  Con.,  457. 


56  THE  LAW  OF  DAMAGES. 


Fraud  Generally. 


plaiiitiflP,  without  knowledge  of  the  tact,  mixed  them  with 
other  sheep  that  thereby  became  diseased,  it  was  held  that 
the  plaintiff  could  recover,  not  only  the  difference  between 
the  value  of  the  sheep  sold  as  sound  and  the  diseased  sheep, 
but  also  the  damages  sustained  by  the  communication  of  the 
disease  to  the  other  flock.' 

So,  where  a  gun  had  been  purchased  of  the  defendant,  and 
he  had  fraudulently  represented  it  to  be  made  by  a  particular 
maker  and  to  be  well  made,  when  in  fact  it  was  not  well 
made,  nor  was  it  made  by  the  gunsmith  represented,  and  the 
gun  exploded  in  the  hands  of  the  plaintiff's  son  and  injured 
him,  the  damages  thereby  sustained  were  held  to  be  not  too 
remote.' 

And,  in  South  Carolina,  in  an  action  of  assumpsit,  to  recover 
damages  upon  the  sale  of  cotton  alleged  to  have  been  fraudu- 
lently packed,  by  having  the  center  of  the  bales  wet;  the 
cotton  was  sent  to  Liverpool,  sold  as  sound  cotton  at  the  then 
current  price,  the  fraud  discovered,  and  the  cotton  returned 
and  resold  at  Liverpool  as  damaged  cotton,  and  at  considera- 
ble loss. 

The  court,  Nott,  J.,  remarked:  "Assumpsit,  is  nomen 
generalissimum,  under  which  a  great  variety  of  special  cases 
are  embraced.  The  damages  to  be  recovered  must  always 
depend  on  the  nature  of  the  action  and  the  circumstances  of 
the  case.  In  an  action  for  money  had  and  received,  the  actual 
amount  of  money  received,  with  interest  in  some  cases,  should 


*  Jeffrey  v.  Bigelow,  13  Wend.,  518.  See,  also,  Sherrod  v.  Langdon,  21 
la.,  518,  where  there  was  a  sale  of  sheep  with  a  fraudulent  representation 
that  they  were  free  from  "  scab  "  or  "foot  rot,"  and  other  sheep  of  the  pur- 
chaser became  diseased  by  contact  with  the  diseased  sheep  purchased  of 
defendant. 

7  Langridge  v.  Levy,  2  Mees.  &  Wells,  519 ;  4  M.  &  W.,  337.  But  this  decis- 
ion was  placed  on  the  ground  that  malice  should  be  imputed  to  the  defend- 
ant, as  the  result  might  have  been  contemplated  by  him.  See,  also,  Paseley 
V.  Freeman,  3  T.  R.,  51;  MuUett  v.  Mason,  1  C.  P.  JL.  R.),  559;  Barnum 
V.  Vanduzen,  IG  Conn.,  200. 


ILLUSTRATI0:N"S— LAKGEE  RULE.  57 

Fraudulent  Breaches  of  Contract. 


be  the  measure  of  damages;  in  an  action  for  goods  sold  and 
delivered  the  value  of  the  thing  sold;  and  so  on  in  all  other 
cases,  which  furnish  a  standard  hy  which  the  jury  can  be 
governed.  But  in  cases  of  fraud,  and  in  other  cases  merely 
sounding  in  damages,  the  jury  may  give  a  verdict  for  the 
whole  amount  of  injury  sustained,  or  imaginary  damages.'''' 

After  commenting  on  the  rule  of  damages  in  actions  for  a 
breach  of  promise,  and  various  English  cases,  he  further  said: 
"  I  apprehend,  after  all  these  cases,  it  can  no  longer  be  con- 
sidered, as  has  been  somewhat  confidently  asserted  in  this 
case,  that  even  vindictive  damages  may  not  be  given  in  an 
action  of  assumpsit;  and  surely  it  will  not  be  denied,  that  the 
plaintiff  may  recover  the  amount  of  the  loss  which  he  has 
actually  sustained.'" 

§  58.  Fraudulent  Breaclies  of  Contract.— The  doc- 
trine of  extended  liability  in  cases  of  willful  and  aggravated 
torts,  has  been  applied  to  breaches  of  contracts,  where  the 
breach  occurs  through  the  fraud  or  want  of  good  faith  of  the 
oblio-or;  and  a  distinction  is  made  in  the  measure  of  damages 
on  the  failure  by  the  vendor  to  convey  lands  according  to  his 
contract,  where  he  is  unable  to  convey  for  want  of  title, 
between  his  good  and  bad  faith  in  the  matter.  If  there  has 
been  no  fraud  on  his  part,  and  he  has  acted  hona  fide,  the 
usual  measure  of  damages,  where  the  consideration  money  has 
been  paid,  is  the  consideration  money  and  interest.''  But,  if 
the  vendor  is  chargeable  with  fraud  or  bad  faith  in  the  matter, 
the  vendee  may  recover  larger  damages,  including  the  value 
of  the  land  at  the  time  the  conveyance  should  have  been 
made,  or  for  the  loss  of  his  bargain.' 

'  Rosev.  Beattie,  2  N.  &  McC.  (S.  C),  538  (1820).  The  intimation  by 
the  court,  "  that  even  vindictive  damages  "  maybe  given  in  an  action  of 
assumpsit,  is  evidently  a  mere  dictum. 

=  See,  post,  §  481,  et  seq. 

3  Flureau  v.  ThomhiU,  2  W.  BL,  1078;  Barbour  v.  Nichols,  3  R.  I.,  187. 
See,  post,  §  484,  for  a  full  consideration  of  the  subject. 


58  THE  LAW  OF  DAMAGES. 


Breaches  of  Contract  under  Circumstances  of  Aggravation. 


Thus,  in  Iowa,  in  an  action  for  damages  for  a  breach  of  an 
agreement  to  convey  land,  Wright,  C.  J.,  in  delivering  the 
opinion  of  the  court  in  the  case,  uses  this  language:  "We 
believe  the  measure  of  damages  should  depend  upon  the  cause 
of  the  failure.  If  the  person  selling  is  honest,  and  is  prevented 
from  making  the  conveyance  by  unforeseen  causes  which  he 
could  not  control,  the  plaintiff  should  recover  only  nominal, 
damages;  if  he  has  paid  the  price  or  any  part  thereof,  then  of 
course  in  that  case  lie  should  recover  that  sum  with  interest. 
But,  if  the  person  selling  is  in  fault,  and  either  did  or 
should  have  known  that  he  could  not  comply  with  his  under- 
taking; or  having  the  title,  refuses  to  convey;  o?  having  the 
title  at  the  time  of  the  agreement  afterwards  disables  himself 
from  completing  it  by  a  sale  to  a  third  person;  or  at  the  time 
of  the  agreement  knew  he  had  no  title;  in  these,  and  in  all 
cases  where  the  inability  arises  from  fraud  in  the  covenantor, 
the  purchaser  should  recover  substantial  damages,  including 
compensation  for  any  actual  loss,  as  by  the  increased  value  of 
the  land  at  the  time  the  contract  should  have  been  execu- 
ted." * 

§  59.  Breaches  of  Contracts  under  Circumstances  of 
Aggravation. — Tlie  proposition  is  further  illustrated  by  the 
Eno-lish  case  of  Coppin  v.  Braithwaite^  where  an  action  was 
brought  for  a  breach  of  contract  to  carry  the  plaintiff,  on  a 
steamship,  from  London  to  Sheerness.  The  defendant  on  the 
way  caused  the  plaintiff  to  be  disembarked  at  an  intermediate 
port  without  just  cause,  and  in  a  scandalous  and  disgraceful 
manner.  These  circumstances  were  held  proper  to  be  shown 
to  increase  the  damages.  Park,  B.,  remarking:  "  Suppose, 
instead  of  a  man  landed  at  Gravesend   from  a  steamboat, 


♦Foley  V.  McKegan,  4  la.,  1.  See,  also,  Sweeme  v.  Steele,  5  Id.,  352; 
Hopkins  V.  Lea,  6  Wheat.,  109;  Nichols  v.  Freeman,  11  Ired.,  99;  Bryant 
V.  Hambrick,9  Ga.,  133;  Whiteside  v.  Jennings,  19  Ala.,  7S4;  WaiTen  v. 
Wheeler,  21  Me..  584;  Driggs  v.  Dwight,  17  Wend.,  71;  Peters  v.  McKeon, 
4  Denio,  564;  2  Pars,  on  Con.,  505. 


ILLUSTRATIONS-LARGER  RULE.  59 


Breaches  of  Contract  under  Circumstances  of  Aggravation. 


this  bad  been  the  case  of  a  passenger  in  a  ship  bound  to  the 
AVest  Indies,  and  he  were  put  ashore  on  a  desert  island  witli- 
out  food,  and  exposed  to  the  burning  sun,  and  the  danger  of 
wild  beasts,  or  even  landed  among  savages,  would  not  evidence 
be  receivable  to  show  the  state  of  the  island  where  he  was 
left,  and  the  circumstances  attending  the  violation  of  the 
contract?"' 

§  60.  A  similar  case  was  recently  before  the  Supreme 
Court  of  California.  The  action  was  for  damages  for  the 
wrongful  breach  of  a  contract  to  transport  the  plaintiff,  a  female 
passenger,  from  San  Francisco  to  San  Juan  del  Sur,  in  Nic- 
arao-ua.  The  evidence  showed  that  on  the  arrival  of  the  steam- 
ship  Cortes,  (the  defendant  in  the  action,)  at  San  Juan,  the 
plaintiff  was  not  permitted  to  land,  but  was  taken  to  Panama 
against  her  will,  and  there  landed  in  an  unhealthy  country; 
and  after  a  detention  there  in  a  destitute  condition  for  ten 
days,  there  being  no  direct  means  of  transportation  between 
Panama  and  San  Juan,  the  plaintiff  was  compelled  to  go  to 
Kew  York,  in  order  to  reach  Nicaragua.  The  court  held,  that 
the  whole  case  should  go  to  the  jury,  the  Code  of  California 
permitting  all  matters  forming  part  of  one  transaction  to  be 
united  in  one  suit;  that  the  plaintiff  might  recover  not  only 
the  pecuniary  loss  directly  resulting  from  the  breach  of  the 
contract,  but  also  exemplary  damages  for  any  deceit  practiced 
by  the  owners  and  agents  of  the  steamer,  including  damages 
for  her  distress  of  mind. 

The  court  remarks:  "The  injuries  complained  of  are  of 
such  a  character  that  redress  may  undoubtedly  be  obtained  in 
some  form,  and  under  our  practice  there  is  no  reason  why  the 
plaintiffs  sho'uld  be  compelled  to  resort  to  different  actions  for 
the  relief,  to  which  the  law  entitles  them.  We  have  but  one 
form  of  action,  and  nothing  more  is  required  than  a  statement, 
in  ordinary  language,  of  the  facts  relied  upon  for  a  recovery. 

s  8  Jur.,  875. 


60  THE  LAW  OF  DAMAGES. 


Breaches  of  Contract  under  Circumstances  of  Aggravation. 


The  statute  makes  no  distinction,  in  matters  of  form,  between 
actions  of  contract  and  those  of  tort,  and  relief  is  administered 
without  reference  to   the  technical  and  artificial  rules  of  the 
common  law  upon  this  subject.     Different  causes  of  action 
may  be  united  in  the  same  complaint;  and  the  only  restric- 
tions upon  the  pleader  in  this  respect  are  those  imposed  by 
statute.     Our  system  of  pleading  is  founded  upon  the  model 
of  the  civil  law,  and  one  of  its  principal  objects  is  to  discour- 
age protracted  and  vexatious  litigation.     It  is  the  duty  of  the 
courts  to  assist,  so  far  as  practicable,  in  the  accomplishment  of 
this  object,  and  it  should  not  be  frittered  away  by  the  application 
of  rules  which  have  no  legitimate  connection  with  the  system. 
The  provisions  for  avoiding  a  multiplicity  of  suits  are  to  be 
liberally  and  beneficially  construed;  and  we  see  no  reason  why 
all  the  matters  arising  from  and  constituting  part  of  the  same 
transaction,  should  not  be  litigated  and  determined  in  the 
same  action. 

Causes  of  complaint  differing  in  their  nature,  and  having  no 
connection  with  each  other,  cannot  be  united;  but  the  object 
of  this  rule  is  to  prevent  the  confusion  and  embarrassment 
which  would  necessarily  result  from  the  union  of  divers  and 
incongruous  matters,  and  it  has  no  application  to  a  case  embrac- 
ing a  variety  of  circumstances  so  connected  as  to  constitute 
but  one  transaction.""  But  the  claim  in  this  case  might 
have  been  properly  sustained,  perhaps,  on  the  ground  of  fraud. 

§  61.  This  doctrine  of  more  extended  liability  in  cases  of 
fraud  or  willful  breaches  of  contract  has  frequently  been 
recognized. 

Thus,  in  a  recent  case  in  New  York,  Matson,  J.,  remarks: 
"  I  understand  this  distinction  to  be  recognized  and  settled, 
that  if  the  executory  vendor  has  it  in  his  power  to  perform 

6  Jones  V.  Steamship  Cortes,  17  Cal.,  487.  See  also,  Stoneseifer  v.  Sheble, 
31  Mo.,  243;  Heirn  v.  McCaughan,  32  Miss.,  17,  where  such  a  wrong  was  held 
to  be  a  violation  of  public  duty  and  founded  in  tort. 


ILLUSTRATIONS— LAKGEK  RULE.  Gl 

Breaches  of  Contract  under  Circumstances  of  Aggravation. 

his  contract,  and  refuses  to  do  so,  or  has  wrongfully  put  it  out 
of  his  power  so  to  do,  he  takes  himself  without  the  arbitrary 
rule  of  damages,  {i.  e.  the  rule  that  the  measure  of  damages 
upon  a  breach  of  covenant,  etc.,  is  the  price  paid  with  inter- 
est,) and  becomes  liable  for  the  value  of  the  estate  at  the  time 
it  was  to  have  been  conveyed."  ' 

The  doctrine  of  an  enlarged  rule  of  damages  in  such  cases 
was  recognized  by  Mr.  Chitty,  in  his  valuable  work  on  Con- 
tracts. He  says:  "There  are  instances  in  which  the  defend- 
ant may  be  regarded  in  the  light  of  a  wrongdoer  in  l)reaking 
his  contract,  and  in  such  cases  a  greater  latitude  is  allowed  the 
jury  in  assessing  the  damages."  *  And  in  support  of  his 
position  he  refers  to  the  case  of  an  action  brought  on  a  bond 
given  to  resign  a  living,  and  a  refusal  of  the  defendant  to  per- 
form ;  and  where  the  court  held  that  the  defendant,  being  a 
wrongdoer,  the  damages  were  not  limited  to  the  value  of  the 
living  to  him.' 

§  62-  Mr.  Sedgwick  regards  these  cases  as  exce]3tions  to 
the  general  rule  of  damages.  And  he  remarks  in  reference  to 
the  failure  of  a  vendor  to  convey,  as  follows :  "  In  these 
cases,  the  line  has  repeatedly  been  drawn  between  parties  act- 
ing in  good  faith,  and  failing  to  perform  because  they  could 
not  make  a  title,  and  parties  whose  conduct  is  tainted  with 
fraud  or  bad  faith.  In  the  former  case  the  plaintiif  can  only 
recover  whatever  money  has  been  paid  by  him,  with  interest 
and  expenses.  In  the  latter  he  is  entitled  to  damages  resulting 
from  his  loss  of  his  bargain.  This  exception  cannot,  I  think, 
be  justified  or  explained  on  principle,  but  is  well  settled  in 
practice."  ' 

7  Mack  V.  Patchen,  29  How.  (N.  Y.)  Pr.,  20;  42  Id.,  167.  Sfee  also,  Chat- 
terton  v.  Fox,  5  Duer.  (N.  Y.),  64;  Marquart  v.  La  Farge,  5  Id.,  559;  Hall  v. 
Delaplane,  5  Wis.,  206;  Lawrence  v.  Chase,  54  Me,,  196. 

8  Chit,  on  Con.,  684. 

9  Sondes  v.  Fletcher,  5  B.  and  Aid.,  835. 
'  Sedg.  on  Dam.,  209. 


62  THE  LAW  OF  DAMAGES. 


Distinction  between  Tort  and  Contract-Statutory  Reform. 


§  03.  Distinction  between  Tort  and  Contract  as  to 
Motives.  It  has  been  maintained  that  the  general  principles 
of  the  common  law  forbade  any  inquiry  into  the  motives  of 
the  defendant  in  failing  to  comply  with  his  contract;  and 
that  while  the  anim.us  of  the  wrongdoer  was  properly  a  mat- 
ter of  consideration  in  cases  of  torts,  in  actions  ex  contractu, 
the  motive,  intent  or  animus  of  the  defaulting  party  was  con- 
sidered wholly  irrelevant  to  the  issue  joined.  This  was  so 
considered  on  account  of  the  technicalities  of  the  common  law 
forms  of  action,  and  the  principles  of  evidence  adapted  to 
them. 

At  common  law  but  one  cause  of  action  could  be  embraced 
in  the  same  suit.  But  under  the  reforms  inaugurated  in  many, 
if  not  most,  of  the  States  of  the  Union  different  causes  of 
action  may  be  united  in  the  same  suit,  and  even  actions,  for 
torts  may  be  united  with  those  for  breaches  of  contract  and 
injuries  to  the  person  and  character  with  those  on  covenants, 
if  they  are  between  the  same  parties,  in  the  same  rights,  and 
have  the  same  venue.^ 

§  64.  The  Doctrines  of  the  Common  Law— Statutory 
Reform.— The  artificial  and  technical  doctrines  of  the  com- 
mon law  were,  many  times,  hinderances  rather  than  aids  to 
absolute  justice;  but  the  reforms  referred  to  are  calculated  to 
avoid  delay  and  expense,  prevent  circuity,  and  secure  with 
equal  or  greater  certainty  the  rights  of  parties. 

We  have  noticed  the  extent  to  which  the  courts  have  gone 
in  considering  motives  on  breaches  of  contracts;  and  there 
would  seem  to  be  a  tendency  to  allow  an  inquiry  into  the 
motives  generally  in  such  cases.     And,  when  the  question  is 

'  Iowa  Code  (1873),  Sec.  2844;  Gen.  Statutes  Mo.,  Ch.  165,  §2;  The  Code 
of  Maryland  and  the  English  act  of  1857,  are  substantially  the  same.  See, 
also,  Robinson  V.  Flint.  16  How.  (N.  Y.),  Pr.  240;  Turner  v.  The  First  Nat. 
Bank  of  Keokuk,  26  Iowa,  562;  Reed  v.  Howe,  28  Id.,  250;  Hord  v.  Chan- 
dler, 13  B.  Mon.  (Ky.),  404;  McKee  v.  Pope,  18  Id.,  555;  Jones  v.  Steam- 
ship Cortes,  17  Cal.,  487. 


ILLUSTRATIONS— LARGEK  RULE.  63 


Doctrines  of  the  Common  Law— Statutory  Keform. 


freed  from  the  technical  and  formal  objections  we  have  referred 
to,  there  can  be  no  sound  reason  why  a  plaintiff  may  not 
recover  as  ample  damages  for  a  willful  breach  of  a  contract  as 
for  a  willful  tort." 


3  The  benefits  and  advantages  of  the  reform  akeady  inaugurated,  is  illus- 
trated by  a  recent  case  under  the  Code  of  New  York,  where  the  facts  stated 
in  the  complaint  were  sufficient  to  sustain  an  action  for  damages  for  both 
assault  and  battery  and  for  slander.    The  court  say: 

''The  complaint,  in  fact,  contains  but  a  single  cause  of  action;  the  alle- 
gations relate  to  a  single  transaction;  the  complaint  purports  to  give  the 
history  of  one  occurrence  and  no  more.  The  liistory  embraces  what  was 
done  on  the  occasion,  and  what  was  said  on  the  occasion;  each  constitutes 
a  part  of  the  res  gestce;  what  is  alleged  to  have  been  done  would,  if  estab- 
lished upon  the  trial,  sustain  an  action  for  personal  injury;  what  is  alleged 
to  have  been  said,  would,  if  estabUshed  upon  the  trial,  sustain  an  action  for 
injury  to  the  reputation.  The  whole  together  constituting,  as  it  does,  but 
a  single  transaction,  makes  but  a  single  cause  of  action.  The  plaintiff 
brings  his  action  upon  the  whole  case,  to  recover  damages  for  the  compound 
injuries  he  has  sustained.  *  *  *  When  it  comes  to  trial  all  that  was  said, 
and  all  that  was  done,  become  the  proper  subjects  of  investigation,  and  a 
single  verdict  adjusts  the  rights  of  the  parties."  Brewer  v.  Temple,  15 
How.  Pr.  (N.  Y.),  286. 


64  THE  LAW  OF  DAMAGES. 


Gross  Negligence,  Fraud,  Outrage  and  Insult. 


OHAPTEE  YI. 


AGGEAYATED  TOETS  AND  EXEMPLAEY 
DAMAGES. 

Section  69.    Gross  Negligence,  Fraud,  Outrage  and  Insult. 

70.  Conflicting  Views  of  Mr.  Greenleaf  and  Mr.  Sedgwick. 

71.  The  Doctrine  of  Exemplary  Damages  Kecognized  in  a  G-reat 

Variety  of  Cases. 

72.  Doctrine  Not  Universal — "When  Qualified. 

73.  Compensatory  and  Exemplary  Damages — Controversy. 

78.  The  Intent  of  the  "Wrongdoer  an  Important  Element. 

79.  The  Rule  Not  Applicable  to  Infants  or  Non-Compotes. 

80.  Nor  to  Municipal  Corporations. 

81.  Exemplary  Damages  Illustrated — English  Cases. 

82.  American  Cases. 

63.    Statement  of  the  Rule. 

84.  Negligence — The  Rule  in  Case  of. 

85.  Liability  of  Principals  for  Exemplary  Damages,  for  Acts  of 

Agents. 

86.  To  Hold  the  Principal  Liable  it  Must  Appear  that  he  is  Cul- 

pable. 

88.  Degree  of  Gross  Negligence  which  Makes  him  Liable. 

89.  Criminal  Liability,  or  Prosecution  and  Punishment  for  the 

"Wrong. 

90.  Criminal  Prosecution,  etc.,  in  Mitigation. 

91.  Contrary  Doctrine. 

92.  "Where  Exemplary  Damages  have  been  Refused, 

93.  Principal— 'When   not  liable  to  Exemplary  Damages  for  the 

Negligence  of  an  Agent. 

94.  Breach  of  Promise  of  Marriage. 

§  69.    Gross  Negligence,  Fraud,  Outrage  and  Insult. 

— The  extended  rules  ot' damages  we  have  been  considering,  are 
rules  of  law,  and  the  measure  of  damages  in^sueh  cases  are  more 


EXEMPLARY  DAMAGES.  65 

Conflicting  Views  of  Greenleaf  and  Sedgwick. 

or  less  under  the  control  of  the  court,  as  the  rules  governing 
in  such  cases  are  given  by  the  court;  but  there  are  a  class  of 
cases  of  aoftjravated  wronsrs  where  there  can  be  no  definite 
rule  of  damages. 

Thus,  according  to  our  sixth  rule,'  in  cases  of  gross  negli- 
gence, or  fraud,  or  where  circumstances  of  gross  outrage, 
oppression,  or  insult  accompany  the  wrong  done,  the  damages 
are  not  limited  to  actual  compensation,  but  may  be  increased 
so  as  to  punish  the  wrongdoer  and  afford  a  salutary  lesson  of 
admonition  to  others. 

In  such  cases  the  amount  of  damages  by  way  of  punishment 
or  example,  are  necessarily  largely  within  the  discretion  of  the 
jury;  the  only  check,  as  we  shall  hereafter  more  fully  consider, 
being  the  power  of  the  court  to  set  aside  the  verdict  where  it 
is  manifest  that  the  jury  were  unduly  influenced  by  passion, 
prejudice,  partiality,  or  corruption,  or  where  it  clearly  evinces 
a  mistake  of  the  law  or  of  the  facts  in  the  case.'' 

§  70.  The  Conflicting  Views  of  3Ir.  Greenleaf  and 
Mr.  Sedgwick. — The  doctrine  of  exemplary  or  punitive 
damages  is  entirely  ignored  by  Mr.  Greenleaf,  who,  in  his 
valuable   Treatise   on   Evidence,   remarks:      "  Damages   are 

'  See,  ante.  §  32.  Mr.  Mayne,  in  his  valuable  Treatise  on  Damages, 
observes:  "Torts  are  divided  into  three  classes:  injuries  to  the  property, 
person,  or  character.  Those  of  the  former  class  may  be  mingled  with  ingre- 
dients which  -will  enhance  the  damages  to  any  amount.  For  instance,  a 
man's  goods  may  be  seized  under  circumstances  which  involve  a  charge  of  a 
criminal  nature,  or  a  trespass  upon  land  may  be  attended  by  wanton  insult 
to  the  o^vner.  Any  species  of  aggravation  will,  of  course,  give  ground  for 
additional  damages."     Mayne  on  Dam.,  12. 

=  Kendall  v.  Stone,  2  Sanf.  (S.  C.  R.),  269:  Teanor  v.  Donalin.  9  Cush.,  228; 
Day  V.  Halloway,  1  Jur.,  794;  2  Greenlf.  on  Ev.,  §  255.  See,  also,  as  to  set- 
ting aside  verdicts,  post,  Chap.  37.  Where  damages  may  be  given  for 
example  and  punishment,  see,  ante,  §  26,  note  2;  Hunt  v.  Bennett, 
19  N.  Y.,  173;  Johnson  v.  Jenkins,  24  N.  Y.,  252;  1  Abb.  Pr.,  289; 
4  Duer,  247;  Brown  v.  Chadsey,  39  Barb.,  253;  Sharon  v.  Mosier,  17  Barb., 
518;  Nightengale  v.  ScannelL  18  Cal,  315;  Dorsey  v.  Manlove,  14  Cal.,  553; 
8  Pars,  on  Con.,  169,  et  seq.;  Pounsett  v.  Fuller,  17  C.  B.,  660.  But,  see, 
post,  §§  76,  77,  and  notes. 
5 


ee  THE  LAW  OF  DAMAGES. 

Conflicting  Views  of  Greenleaf  and  Sedgwick. 

given  as  compensation,  recompense,  or  satisfaction  to  the 
plaintiff,  for  an  injury  actually  received  by  him  from  the 
defendant.  They  should  be  precisely  commensurate  with 
the  injury,  neither  more  nor  less,  and  this,  whether  it  be  to  the 
person  or  estate.'"  While  on  the  other  hand,  Mr.  Sedgwick, 
in  his  valuable  work  on  Damages,  denies  the  limited  rule  laid 
down  by  Mr.  Greenleaf;  and  maintains  the  doctrine  of  exem- 
plary or  punitive  damages.  He  says  :  "  Whenever  the 
elements  of  fraud,  malice,  gross  negligence,  or  oppression, 
mingle  in  the  controversy,  the  law,  instead  of  adhering  to  the 
Fystem,  or  even  the  language  of  compensation,  adopts  a 
wholly  different  rule.  It  permits  the  jury  to  give  what  it 
terms  punitive,  vindictive,  or  exemplary  damages;  in  other 
words,  blends  together  the  interests  of  society  and  the 
aggrieved  individual,  and  gives  damages,  not  only  to  recom- 
pense the  suffer,  but  to  punish  the  offender."*  And  this 
doctrine  seems  to  be  sustained  by  at  least  a  great  preponder- 
ance of  authorities,  both  in  England  and  in  this  country.^ 


3  2  Greenlf.  on  Ev.,  §§  253  and  273. 

♦  Sed^.  on  Damages,  38. 

s  Philadelphia,  etc.,  R.  Co.  v.  Quigley,  21  How.,  212;  Dibble  v.  Moms,  26 
Conn.,  416;  Dean  v.  Blackwell,  18  111.,  336;  Ousey  v.  Hardin,  23  111.,  403; 
Bell  V.  Morrison,  27  Miss.,  68;  Hopkins  v.  Atlantic,  etc.,  R.  Co.,  36  N.  H., 
9;  Kountz  v.  Brown,  16  B.  Mon.  (Ky.),  579;  Hawkins  v.  Riley,  17  Id.,  101; 
Hair  v.  Little,  28  Ala.,  236;  Roberts  v.  Heime,  27  Id.,  678;  Porter  v.  Seller, 
23  Pa.  St.,  424;  Cook  v.  Grace,  9  Tex..  -358;  Champion  v.  Vincent,  20,  Tex., 
811;  Clark  v.  Bales,  15  Ark.  (Barb.),  452;  Wilie  v.  Smitherman,  8  Ired., 
236;  Gilreath  v.  Allen,  10  Id.,  67;  Lindsley  v.  Bushnell,  15  Conn.,  236; 
Beecher  v.  Derby  Bridge  &  Ferry  Co.,  24  Id.,  491;  Welch  v.  Durand,  36 
Id..  182;  Farwell  v.  Warren,  51  111.,  467;  Green  v.  Craig,  47  Mo.,  90; 
New  Orleans,  etc.,  R.  Co.  v.  Statham,  42  Miss.,  607;  Hoadly  v.  Watson,  45 
Vt.,  289;  Buckly  v.  Knapp,  48  Mo.,  151;  Fredcnheit  v.  WiUiamson,  36  Id., 
152;  Roberts  v.  Mason,  10  Ohio  St.,  277;  11  Ohio  St.,  457.  See,  also,  ante, 
§§  26,  32;  Mayne  on  Dam.,  13.  The  authorities  on  this  point  are  numerous, 
and,  except  perhaps,  in  Massachusetts,  uniform.  We  shall  have  occasion 
to  cite  them  in  the  special  treatment  of  various  topics  and  hence  deem  a 
fuller  citation  here  unnecessary. 


EXEMPLAEY  DAMAGES.  67 

Doctrine  of  Exemplary  Damages  Recognized. 

§  71.  The  Doctrine  of  Exemplary  Damages  Recog- 
nized in  a  great  variety  of  Cases.— This  doctrine  lias  been 
recognized  in  almost  every  variety  of  injuries.  Thus,  it  has  been 
recognized  in  cases  of  trespass  to  real  estate,  quare  clausum 
f regit f'  in  trespass  to  personal  property;'  in  actions  for  gross 
negligence;'  gross  breaches  of  duty;'  false  imprisonment;'" 
replevin;"  trover;"  slander;"  libel;"  fraud;'' assault  and  bat- 

6Devaughn  v.  Heath,  31  Ala.,  595;  Perkins  v.  Towle,  43  N.  H.,  220; 
Green,  etc.,  R.  Co.  v.  Partton,  14  Rich.  (S.  C),  237;  Kolb  v.  Barkhead,  18 
Tex.,  228;  Schindel  v.  Schindel,  12  Md.,  108;  Ellsworth  v.  Potter.  41  Vt.. 
685;  Sears  v.  Lyons,  2  Stark.  (N.  P.),  317;  James  v.  Campbell,  5  Car.  &  P., 
372;  Doe  v.  FiUiter,  13  M.  &  W.,  47. 

7  Dibble  v.  Morris,  26  Conn.,  416;  Churcbil  v.  Watson.  5  Day  (Conn.). 
140;  Trent  v.  Barber.  7  Conn.,  274;  Nagle  v.  Mullison,  '?A  Pa.  St.,  48;  Brown 
V.  Green,  2  Dev.  (Ky.),  234;  Dorsey  v.  Manlove,  14  Cal.,  553;  Farwell  v. 
Warren,  51  lU.,  467;  Green  v.  Craig,  47  Mo.,  90;  Best  v.  Allen,  -30  111.,  30; 
Bull  V.  Griswold,  19  Id.,  631;  Parker  v.  Mise,  27  Ala.,  480. 

8  Cochran  V.  Miller,  13  Iowa,  128  (an  action  for  malpractice  by  a  physician); 
Kountz  V.  Brown,  16  B.  Mon.  (Ky.),  577;  Baltimore,  etc.,  R.  Co.  v.  Breing, 
25  Md.,  378:  Frink  v.  Coe,  4  Greene  (la.),  555;  Vicksburgh,  etc.,  R.  Co.  v. 
Patton,  .31  Miss.,  156;  Heim  v.  McLaughlin,  32  Miss.,  17;  Pickett  v.  Crook, 
20  Wis.,  358  (an  action  for  an  injury  from  a  vicious  ram,  and  where  it  was 
held  that  gross  and  criminal  negligence  was  equivalent  to  malice);  Genay  v. 
Norris,  1  Bay.  (S.  C),  6;  Vance  v.  Vanarsdale,  1  Bush.  (Ky.),  504;  Taylor  v. 
Railway,  48  N.  H.,  304;  Memphis,  etc.,  R.  Co..  v.  Whitfield,  44  Miss.,  466. 

5  Mendelsohn  v.  Anaheim  Lighter  Co.,  40  Cal.,  657;  Lynd  v.  Picket,  (an 
action  against  an  officer  for  attaching  property  kno^ving  it  be  exempt.)  7 
Minn.,  184;  Nightengale  v.  Scannell,  18  Cal.,  315.  where  it  is  held  that  an 
oflicer  is  liable  for  exemplary  damages,  for  a  malicious  trespass  though  act- 
ing under  color  of  law. 

"  Donnelly  v.  Harris,  41  111.,  126;  Wanizer  v.  Bright,  52  lU.,  35;  McCall 
V.  McDonald,  1  Abb.  (U.  S.),  212;  Huckle  v.  Money,  2  Wils.,  205. 

"  Craig  V.  Kline,  65  Pa.  St..  399.  where  it  is  held  that  exemplary  damages 
may  be  given  in  replevin  where  there  has  been  outrage  in  the  taking  or 
vexation  or  oppression  in  the  detention. 

"  Mowry  v.  Wood,  12  Mo.,  413. 

'3  Knight  V.  Foster,  39  N.  H.,  576;  Hosley  v.  Brooks,  20  111.,  115;  Guard 
V.  Rick,  11  Id.,  156;  Gilreathv.  Allen,  10  Ired.  (N.  C),  67;  Miles  v.  Haning- 
ton.  8  Kans.,  425. 

u  Buckly  V.  Knapp,  48  Mo.,  152;  Hunt  v.  Bennett,  19  N.  Y.,  173;  Phila- 
delphia, etc..  R.  Co.  V.  Quigley,  21  How.  (U.  S.),  202;  Day  v.  Woodwoith, 
13  How.  (U.  S.),  363;  Pearsons  v.  Lemaitre,  5  Man.  k  Gr.,  700. 

»5  Oliver  v.  Chapman,  15  Texas.  400;  Kye  v.  Meniam,  35  Vt.,  4-38;  Piatt 
V.  Brown,  30  Conn.,  3-36;  MiUison  v.  Hoch,  17  Ind.,  227;  Wheelecv.  Ran- 
del,  48  111.,  182. 


68  THE  LAW  OF  DAMAGES. 

Doctrine  of  Exemplary  Damages  Recognized. 

tery, and  willful  and  malicious  injuries  to  the  person;"  trespass 
de  honis  asportatls;'''  breach  of  promise  of  marriage;"  malic- 
ious prosecution;"  seduction ;"'  for  the  willful  wrongful  suing 
out  of  an  attachment;"  and  for  willful  wrongs,  and  gross 
breaches  of  dut}-  bj  (common  carriers." 

For  a  full  citation  of  authorities,  reference  may  be  had  to 
that  portion  of  this  treatise  where  these  several  topics  are 
particularly  treated. 

16  Porter  V.  SeUer,  23  Pa.  St.,  424;  Foot  v.  Nichols,  28  III,  486;  Pike  v. 
Dilling,  48  Me.,  539;  Roberts  v.  Mason,  10  Ohio  St.,  277;  McWilliams  v. 
Brags,  3  Wis..  424;  Birchard  v.  Booth,  4  Wis.,  67;  Hooker  v.  Newton.  24 
Wis.,  292;  Wade  V.  Thayer,  40  Cal.,  578;  Dougherty  v.  Shown,  1  Haskell 
(Tenn.).  302;  Wadsworth  v.  Treat,  43  Me.,  163;  Reeder  v.  Purdy.  48  III,  261; 
Willey  V.  Keokuk,  6  Kan.,  94;  Wilson  v.  Middleton.  2  Cal.,  54;  Outley  v. 
Harden,  23  111.,  403;  Green  v.  Craig,  47  Mo.,  90;  Hopkins  v.  Atlantic,  etc., 
R.  Co..  36  N.  H.,  9;  Slater  v.  Sherman,  5  Bush.  (Ky.),  206;  Childs  v.  Drake, 
2  Met.  (Ky.),  146;  Hoadley  v.  Watson,  45  Vt.,  289;  Goetz  v.  Ambs,  27  Mo., 
28;  Mooney  V.  Kennett.  19  Id.,  551;  Aldrich  v.  Palmer,  24  Cal.,  513;  Gore 
V.  Chadwick.  6  Dana  (Ky.),  477;  Moreley  v.  Dunbar,  24  Wis.,  183;  Hooker 
V.  Newton,  24  Wis.,  292. 

'7  More  V.  Shultz,  31  Md.,  418;  Thomas  v.  Harris,  27  L.  J.  Exch.,  353; 
Best  V.  Allen,  supra,  30111.,  30;  Gordon  v.  Jones,  27  Tex.,  620,  though  in 
this  case  fraud  was  a  prominent  element,  and  the  decision  seems  to  have 
rested  on  that  ground;  Milbuvn  v.  Beach,  14  Mo.,  104. 

'8  Goodell  V.  Thurman,  1  Head.  (Tenn.),  209;  CoryeU  v.  Coolbaugh,  1  N. 
J.  L.  (Coxe),  77;  Stout  v.  Pratt,  Id.,  79. 

»9  Burnett  v.  Reed,  51  Pa.  St.,  190;  Cooper  v.  Utterback,  37  Md.,  282; 
Malone  v.  Murphy,  2  Kansas,  250;  Calaham  v.  Catferta,  39  Mo.,  136. 

'°  Goodell  V.  Thurman,  1  Head.  (Tenn.),  209,  stipra;  Ball  v.  Bruce,  21 
III,  161;   Stevenson  v.  Belknap,  6  Iowa,  97;  Tulledge  v.  Wade,  3  Wils.,  18. 

•'  Campbell  v  Chamberlain,  10  Iowa,  337;  McCullough  v.  Walton,  11  Ala., 
492.  See  same  rule  recognized  in  Wood  v.  Barber,  37  Ala.,  60.  The  stat- 
utes frequently  provide  for  the  recovery  of  exemplary  damages  in  such 
cases. 

"  Heim  v.  McLaughlin,  .32  Miss.,  17;  Peoria  Bridge  Ass.,  etc.,  v.  Loomis, 
20  111.,  235;  New  Orleans,  etc.,  R.  Co.  v.  Hurst,  36  Miss.  (7  Geo.),  660;  Dal- 
ton  v.  Beers,  38  Conn.,  529;  Southern  R.  Co.  v.  Kendrick,  40  Miss.,  .374; 
The  Atlantic,  etc.,  R.  Co.  v.  Dunn,  19  Ohio  St.,  162;  Mendelsohn  v.  Ana- 
heim Lighter  Co.,  40  Cal.,  657;  Godard  v.  Grand  Trunk,  etc.,  R.  Co.,  57 
Me.,  202,  where  it  is  held  that  a  railroad  company  is  responsible  for  the 
willful  and  malicious  acts  of  its  agents,  and  that  they  do  not  form  an 
exception  to  the  rule;  Belknap  v.  Boston,  etc.,  R.  Co.,  49  N.  H.,  858;  Cald- 
well v.  New  Jersey  Steamboat  Co.,  47  N.  Y.,  282,      * 


EXEMPLARY  DAMAGES.  G9 

Doctrine  not  Universal— When  Qualified. 

§  72.     Doctrine  not  Universtal— When  Qualified.— 

But  the  doctrine  of  exemplary  damages  is  not  universally 
recognized  in  such  cases,  and  in  some  instances  only  in  a 
qualified  measure.  Thus,  doubts  have  been  expressed  as  to 
the  application  of  the  doctrine  in  cases  of  fraud,  esj)ecially 
M'hen  the  damages  have  only  been  nominal,"  and  it  has  been 
denied  in  such  cases  in  'New  York." 

And,  in  Indiana,  it  has  been  held  that  the  damages  for  torts, 
which  may  also  be  jDunished  criminally,  must  be  limited  to 
compensation  for  the  injury,  and  must  not  be  exemplary." 

And  in  Massachusetts,  where,  following  the  rule  of  Mr. 
Greenleaf,  damages  in  all  cases  seem  to  be  limited  to  the  loss 
sustained,  although  they  may,  in  aggravated  cases,  reach  to 
such  remote  consequences  as  to  be  hardly  distinguished  from 
exemplary  or  punitive  damages. 

Thus,  in  that  state  it  has  been  held,  in  an  action  for  a 
breach  of  promise  of  marriage,  which  is  generally  an  excep- 
tion to  the  rule  of  compensation,  that  damages  should  be 
"computed  on  the  principle  of  indemnity  and  reasonable 
compensation,  and  not  in  any  event  as  vindictive  damages:" 
that  loss  from  the  disappointment  of  expectation,  including 
the  money  value  of  a  marriage  which  would  have  given  a 
jDermanent  home  and  an  advantageous  establishment  to  the 
plaintiff  ;  wounds  and  injuries  to  the  affections,  and  the  morti- 
fication and  distress  of  mind  resulting  to  the  plaintiff  from 


'^  Barber  v.  Kelburn,  supra,  16  Wis.,  485. 

=•*  Lane  v.  Wilcox,  55  Barb.  (N.  Y.),  615.  See,  also,  Lighton  v.  Kenday, 
9  B.  Mon.    (Ky.j,    222.    But  see,  ante,  §  26,  and  notes. 

=s  Tabor  v.  Hutson,  5  Ind..  322;  Norsaman  v.  Recert,  18  Id.,  G-50;  Hum- 
phries v.  Johnson,  20  Id.,  190.  See,  also,  Struble  v.  Nodwift,  11  Id.,  64. 
And  in  Massachusetts  it  has  been  held,  that  if  exemplary  damages  are  ever 
recoverable,  they  cannot  be  recovered  for  an  injury  which  is  also  punishable 
by  indictment.     Austin  v.  Wilson,  4  Cush.,  273. 


70  THE  LAW  OF  DAMAGES. 


Compensatory  and  Exemplary  Damages. 


the  defendant's  failure  to  fulfill  bis  promise,  are  all  to  be 
taken  into  consideration  in  computing  actual  damages." 

And  it  bas  been  beld  tbat  tbe  principal  is  not  liable  for 
exemplary  damages  for  tbe  acts  of  tbe  agent,"  especially  if 
tbey  be  neitber  autborized  nor  ratified  by  tbe  principal.'' 

§  73.     Compensatory  and  Exemplary  Damages. - 

Tbe  line  between  compensatory  and  exemplary  damages  is 
frequently  indistinct,  and  in  many  cases  practically  unimport- 
ant. Compensation  may,  in  aggravated  cases  of  gross  neg- 
lio-ence  or  fraud,  or  wbere  tbe  wrong  is  inflicted  maliciously  or 
w-antonly,  or  witb  circumstances  of  contumely  and  indignity, 
or  under  any  circumstances  of  aggravation,  be  extended  to 
cover  all  losses  and  injuries  tbereby  received,  including  injury 
to  tbe  feelings,  to  paternal  affections  and  rigbts,  loss  of  time, 
bodily  suffering,  mental  agony,  lacerated  feelings,  disap- 
pointed bopes,  loss  of  services,  and  expenses  of  nursing  and 
curino-.  Tbese  are  elements  wbicb  it  is  conceded,  in  most 
cases,  are  proper  to  be  considered  by  tbe  jury,  in  estimating 
damages  in  sucb  cases,  under  tbe  rule  of  compensation. 

But  wbat  cbeck  is  tbere  on  tbe  discretion  of  tbe  jury  in 
fixing  tbe  damages  in  tbese  cases,  even  according  to  tbe  tbeory 
of  compensation  ?  Wbat  rule  is  tbere  by  wbicb  an  estimate 
in  money  maybe  accurately  made,  for  "injured  feebngs," 
"paternal  affection,"  "bodily  suffering,"    "mental   agony," 

^  Harrison  v.  Swift.  13  Allen.  (Mass.),  144.  See,  also,  2  Greenlf.  Ev., 
§§  89  and  267,  where  the  doctrine  of  exemplary  damages  is  denied;  but  the 
doctrine  that  the  degree  of  compensation  should  be  varied,  according  to  the 
circumstances  of  the  wrong  done,  is  recognized. 

^  Wardrobe  v.  Stage  Co.,  7  Cal.,  118;  Mendelsohn  v.  Anaheim  Lighter 
Co.,  40  Id.,  657;  Turner  v.  North  Beach  R.  Co.,  34  Id.,  594;  Hill  v.  The 
New  Orleans,  etc.,  R.  Co.,  11  La.  An.,  292. 

=8  MUwaukee,  etc.,  R.  Co.  v.  Finney,  10  Wis.,  388.  See  also,  post,  §  93, 
Story  on  Agency,  Chap.  12,  §  308,  et  seq.,  and  §  456;  Wright  v.  Wilcox,  19 
Wend.,  343;  Hagan  v.  Providence,  etc.,  R.  Co.,  3  R.  I.,  88;  Craft  v.  Allison, 
4  Barn.  &  Aid.,  590;  McMannus  v.  Crickett,  1  East.,  106;  Broucher  v. 
Noidstrom.  1  Taunt.,  568;  Freeman  v.  Rosher,  13  Q.  B.,  780;  18  L.  J.  Q. 
B.,  340;  2  Roll.,  Abr.,  553. 


EXEMPLARY  DAMAGES.  71 

Compensatory  and  Exemplary  Damages. 

"lacerated  feelings,"  or  "disappointed  hopes?"  Can  proof 
be  made  of  the  exact  amount  of  such  injuries,  or  is  there  any 
rule  to  guide  the  jury  in  determining  them?  It  seems  to  me 
that  there  would,  ordinarily,  be  little  difference  in  the  result, 
whichever  rule  may  be  adopted,  and  that  the  controversy  is 
one  which  relates  more  to  the  use  of  terms  than  to  practical 
results. 

Mr.  Justice  Cole,  in  delivering  the  able  opinion  of  the 
Supreme  Court  of  Iowa,  in  Ilendrlckson  v.  Kingsbury,  which 
was  an  action  for  an  aggravated  assault  and  battery,  thus 
clearly  sets  forth  his  views  on  the  merits  of  the  controversy 
on  the  subject  of  damages.  He  says:  "  The  controversy  on 
this  subject  between  Prof.  Greenleaf  and  Mr,  Sedgwick,  may 
perhaps,  after  all  the  attention  and  discussion  it  has  excited, 
be  found  to  be  a  controversy  as  to  the  terminology  of  the  law, 
rather  than  as  to  the  extent  of  the  right  of  recovery,  or  the  real 
measure  of  damages.  Prof.  Greenleaf  holds,  that  while  the 
plaintiff  can  only  recover  compensation,  he  is  not  confined  to 
the  proof  of  actual  pecuniary  loss,  but  that  the  jury  may  take 
into  consideration  every  circumstance  of  the  act  which  injuri- 
ously affected  the  plaintiff,  not  only  in  his  property,  but  in 
his  person,  his  peace  of  mind,  his  quiet  and  sense  of  security 
in  the  enjoyment  of  his  rights;  in  short,  his  happiness. 
But  it  must  affect  his  happiness  and  not  his  neighbor's ;  and 
therefore  to  this  question  alone  the  jury  should  be  restricted. 
While  Mr.  Sedgwick  holds,  that,  '  whenever  the  elements  of 
fraud,  malice,  gross  negligence  or  oppression  mingle  in  the 
controversy,  the  law,  instead  of  adhering  to  the  system  or 
even  the  language  of  compensation,  adopts  a  wholly  different 
rule.  It  permits  the  jury  to  give  wdiat  it  terms  punitory, 
vindictive,  or  exemplary  damages;  in  other  words,  blends 
together  the  interests  of  society  and  the  aggrieved  individual 
and  gives  damages  not  only  to  recompense  the  sufferer,  but 
to  punish  the  offender.'  *  •5«-  *  *  *  * 


72  THE  LAW  OF  DAMAGES. 


Compensatory  and  Exemplary  Damages. 


"  It  is  perhaps  true  that  the  broad  and  general  language 
of  the  rule,  as  stated  by  Mr.  Sedgwick,  tends  more  to  convey 
to  a  jury  the  idea  of  unlimited  and  unrestrained  power, 
jurisdiction  or  control  over  the  amount  of  their  verdict, 
than  the  rule  as  stated  by  Prof.  Greenleaf,  and  that  under 
that  rule,  jurors  would  more  frequently  return  verdicts  based 
more  or  less  npon  their  passions  and  prejudices,  than  under 
the  other  rule.  For  instance,  the  instructions  as  given  in  this 
case,  (omitting  the  objectionable  clause  heretofore  considered), 
would  tend  to  convey  to  the  jury  the  idea  of  complete  control 
over  the  amount  of  their  verdict,  unrestrained  by  any  legal 
rule  whatever.  But  suppose  they  had  been  instructed  that, 
in  estimating  the  amount  of  the  plaintiff's  damages,  they 
would  ascertain  and  give: 

First.  The  actual  pecuniary  loss  directly  sustained,  as  the 
value  of  the  clothing  destroyed. 

Second.  The  consequential  pecuniary  loss,  as  the  value  of 
the  time  lost  by  the  plaintiff,  the  expenses  (if  any)  incurred 
for  medicines,  physician's  bills,  compensation  to  the  attendant, 
and  board  while  sick,  and  the  like. 

Third.  The  physical  suffering  consequent  upon  the  injury, 
including  any  temporary,  protracted,  or  permanent  deformity, 
disability,  or  disfiguring,  as  by  scars  or  the  like. 

Fourth.  The  mental  anguish,  loss  of  honor  and  sense  of 
shame,  caused  by  the  act  of  the  defendant,  as  by  the  exposure 
of  her  nailed  person  to  the  public,  the  sense  of  wrong  infiicted, 
insult  effected,  the  degradation  felt,  and  the  like. 

Fifth.  The  injury  to  the  business,  reputation,  social  stand- 
ing, and  the  like. 

It  is  not  unreasonable  to  suppose  that  such  an  instruction 
would  more  certainly  exclude  passion  and  prejudice,  and  that 
a  jury  wo'ikl  feel  themselves  more  constrained  to  limit  their 
verdict  to  the  compensation  to  plaintiff  for  the  injuries 
inflicted  by  the  defendant,  and  at  the  same  time,  would  render 


EXEMPLAKT  DAMAGES.  73 

Compensatory  and  Exemplary  Damages. 

a  verdict  which  would  amply  compensate  for  the  injury  in 
every  phase  and  manner  wherein  it  could  operate.  And, 
indeed,  it  seems  to  us  that  under  such  an  instruction  the  ver- 
dict would  be  far  more  likely  to  approximate  to  justice,  and 
to  exclude  passion  and  prejudice,  than  under  the  loose  and 
general  instruction  as  given  by  the  court  in  this  case,  and  jus- 
tified by  the  rule  laid  down  by  Mr.  Sedgwick,  and  sustained 
by  the  general  current  of  the  authorities.  And  yet,  it  is 
doubtless  true,  that  such  an  instruction  might  mislead  and 
confuse  a  jury,  and  that  they  would  not  in  any  event,  have  any 
pecuniary  standard  by  which  to  measure  the  damages,  under 
the  third,  fourth  and  fifth  subdivisions  of  the  instructions,  as 
specified."  " 

The  impossibility,  under  either  rule,  of  fixing  any  absolute 
standard  of  pecuniary  loss  in  such  cases  is  manifest,  and  the 
damages  must  be  to  a  great  extent,  "  imaginary,"  "  presump- 
tive," and  "speculative." 

And  it  may  be  remarked,  in  the  language  of  Pratt,  C.  J., 
in  an  early  English  case,  "  that  the  law  has  not  laid  down 
what  shall  be  the  measure  of  damages  in  actions  of  tort;  the 
measure  is  vague  and  uncertain,  depending-  upon  a  vast  vari- 
ety of  causes,  facts  and  circumstances;  torts  or  injuries  which 
may  be  done  by  one  man  to  another,  are  infinite;  in  cases  of 
criminal  conversation,  battery,  imprisonment,  slander,  mali- 
cious prosecution,  etc.,  the  state,  degree,  quality,  trade,  or  pro- 
fession of  the  party  injured,  as  well  as  of  the  party  who  did 
the  injury,  must  be,  and  generally  are,  considered  by  the  jury 
in  givincj  damages.  The  few  cases  found  in  the  books,  of  new 
trials,  show  that  the  courts  of  justice  have  most  commonly 
set  their  faces  against  them.  *  *  *  It  is  very  dangerous 
for  the  judges  to  intermeddle  in  damages  for  torts ;  it  must  be 
a  glaring  case  indeed  of   outrageous  damages  in  tort,  and 

=!»  Opinion,  Cole,  J.,  in  Hendrickson  v.  Kingsbury,  21  Iowa,  379. 


74  THE  LAW  OF  DAMAGES. 

Compensatory  and  Exemplary  Damages. 

which  all  mankind  must  at  first  blush  think  so,  to  induce  a 
court  to  grant  a  new  trial  for  excessive  damages.'"" 

The  cases  to  which  the  learned  judge  refers  are  evidently 
those  of  an  aggravated  character. 

§  74.  On  this  subject  Mr.  Kutherford  observes :  "  By  dam- 
age we  understand  every  loss,  or  diminution  of  what  is  a 
man's  own  occasioned  by  the  fault  of  another.     •^-      *     *      * 

The  definition  of  damage  extends  the  notion  of  it  beyond 
a  man's  goods.  His  life,  his  limbs,  his  liberty,  an  exemption 
from  pain,  his  character  or  reputation,  are  all  of  them  his  own, 
in  a  strict  and  proper  sense,  so  that  the  loss  or  diminution  of 
any  of  them,  gives  him  a  right  to  demand  reparation  from 
those  by  whose  fault  they  have  been  lost  or  diminished.    *    * 

The  person  who  is  maimed,  has  a  right  to  freedom  from 
causeless  pain,  and  he  who  has  hurt  him,  has  injured  him  in 
this  right.  He  may,  therefore,  demand  smart  money ^  or  some 
consideration  in  amends  for  the  pain  which  he  has  unjustly 
sufiered.  Now,  under  this  head,  we  may  fairly  include  any 
blemish  which  remains  after  the  first  smart  or  pain  is  over; 
for,  as  the  injured  person  had  a  right  to  be  free  from  such 
blemishes,  or  from  the  uneasiness  which  any  deformity  will 
occasion  him,  he  has  a  right  to  be  paid  for  having  them  brought 
upon  him.  If  the  person  who  has  been  ill-treated  should 
escape  without  losing  his  limbs  or  the  use  of  them,  yet,  if  he 
has  been  wounded,  the  expense  of  cure,  the  loss  of  time,  the 
pain  which  he  has  felt,  are  all  of  them  damages  for  which 
reparation  is  due.  Or,  if  he  has  been  only  beaten,  so  that  there 
has  been  no  expense  of  cure  and  no  loss  of  time,  he  has  still 
a  demand  of  smart  money ^  or  of  satisfaction  for  the  pain  that 
he  has  felt.  What  has  been  said  concerning  maiming,  wounds 
or  blows,  will  be  sufticient  to  show  what  sort  of  amends  is  due 
to  a  man  who  has  been  deprived  of  his  liberty  by  unjust 
imprisonment.     His  loss  of  time  is  one  article  in  the  account, 

3»  Iluckle  V.  Money,  2  Wils.,  206. 


EXEMPLARY  DAMAGES.  75 

Compensatory  and  Exemplary  Damages. 

but  it  is  not  the  only  one;  the  mere  uneasiness  of  such  a  situ- 
ation, under  which  we  may  inchide  the  disgrace  attending  it, 
is  a  damage  to  him."  ' 

We  may  here  discover  the  origin  of  the  tenn  smart  money, 
which  was  evidently  used  in  England  over  a  hundred  years 
ago,  and  especially  by  this  distinguished  author,  in  a  different 
legal  sense  from  the  one  now  conveyed  by  its  use,  in  connec- 
tion with  damages.  It  was  then  used  to  convey  the  idea  of 
mere  compensation  for  suffering,  or  smarts — physical  or  men- 
tal— which  an  injured  person  suffered,  and  not  to  indicate  a 
punishment  of  the  wrongdoer,  neither  to  make  him  smart  for 
his  wrong  done,  nor  to  deter  others  from  a  repetition  of  similar 
wrongs. 

The  doctrine,  even  in  cases  of  aggravated  wrongs,  was  that 

of  reparation  and  compensation,  and  not  that  of  punishment 

or   example.      And   such   was   the   rule   of  the   Civil   Law. 

i 
although   the  amount  of  damages  depended  much  upon  the 

motives  of  the  wrongdoer  and  the  character  and  quality  of  the 

injury. 

§  75.  Domat  held,  that  if  the  injury  w^as  innocently  or 
accidentally  done,  it  should  moderate  the  reparation  to  be 
made,  but  that  a  willful  wrong  cut  off  all  pretentions  to  any 
mitigation  of  damages  caused  thereby.  "  Thus  for  example," 
he  remarks,  "  if  a  creditor  causes  his  debtor  to  be  thrown  into 
jail,  when  he  has  no  right  to  use  the  said  constraint,  whether 
it  be  thai*  his  debt  does  not  give  him  that  powder,  or  that  the  age 
of  his  debtor  or  some  other  cause  does  make  the  said  imprison- 
ment to  be  unjust,  and  the  said  debtor  is  a  day  laborer  or 
other  person  who  by  his  labor  maintains  his  family,  which,  for 
want  of  his  assistance  suffer  likewise  other  losses,  it  will 
depend  on  the  prudence  of  the  judge  to  regulate  a  reparation 
both  for  the  loss  of  the  day's  work  of  this  prisoner,  and  for 
the   other  damages,   according  as  the  injustice  of  the   said 

» Rutherford's  Inst.,  B.  1,  Chap.  17,  §§  1,  10. 


76  THE  LAW  OF  DAMAGES. 

Compensatory  and  Exemplai-y  Damages. 


creditor  may    deserve,    upon   consideration    of  the   circum- 
stances.'" 

§  76.  In  a  recent  case  in  New  Hampshire,  in  an  action  for 
an  assault  and  battery,  it  was  held,  that  the  damages  should 
be  limited  to  full  compensation;  and  that  they  could  not  be 
increased  to  punish  the  defendant.  The  whole  question  of 
exemplary  damages,  in  that  case,  was  fully  and  exhaustively 
considered  by  the  court,  and  the  authorities  critically  reviewed.' 

It  will  be  evident  from  an  examination  of  the  cases  relating 
to  actual  as  well  as  exemplary  and  punitive  damages,  that 
there  is  much  confusion  in  reference  to  the  elements  proper 
for  consideration  by  the  jury  in  determining  the  same. 
Under  the  theory  that  actual  damages  only  should  be  allowed, 
a  large  number  of  cases,  as  we  have  seen  embrace,  as  proper 
elements,  j)hysical  suffering,  mental  agony,  a  sense  of  humilia- 
tion, wounded  feelings,  etc. ;  while,  in  cases  where  the  doctrine 
of  exemplary  damages  is  recognized,  such  damages  are  practi- 
cally limited,  under  the  power  of  the  court  to  set  aside  ver- 
dicts, if  not  by  its  instructions,  to  such  damages  as  are  sup- 
posed to  result  from  physical  suffering,  mental  agony,  a  sense 
of  humiliation,  wounded  feelings,  etc.,  which  injuries  are  not 
capable  of  any  definite  pecuniary  estimate.  While  other 
cases,  recognizing  the  doctrine  of  exemplary  damages,  not  only 
allow  for  all  such  damages  as  are  capable  of  some  certain  and 
definite  pecuniary  estimate,  as  loss  of  services,  medical  and 
other  attendance,  and  the  like,  but  physical  and  mental  sufifer- 
ing,  including  wounded  pride,  a  sense  of  shame  and  humili- 
ation, as  actual  damages;  and  in  addition  thereto  a  certain 
further  amount,  as  the  jury  in  their  discretion  may  allow,  to 
punish  the  offender  for  the  wrong  done,  or  to  furnish  an 
example  to  deter  others  from  repeating  similar  wrongs.     It  is 

"  Domat's  Civ.  Law,  (by  Strahan),  Pt.  1,  B.  3,  Tit.  6,  §1935;  See,  also,  Id., 

3  Fay  V.  Parker,  53  N.  H.,  342. 


EXEMPLAEY  DAMAGES.  77 

Compensatory  and  Exemplary  Damages. 

evident  that  tliis  last  element  is  at  variance  with  the  original 
idea  of  damaijes,  and  that  the  term,  in  its  oriijinal  siijnifica- 
tion,  excluded  al]  idea  of  punishment.  Punishment  for  wrongs, 
and  the  recovery  of  damages  for  an  injury,  were  evidently 
originally  entirely  distinct  and  unconnected.  The  doctrine  of 
exemplary  and  punitive  damages  has,  we  apprehend,  been 
gradually  and  inadvertently  accepted  in  terms,  from  a  confus- 
ion of  ideas  and  a  misapprehension  of  language.  And  it  may 
be  well  seriously  to  consider,  in  view  of  the  many  practical  dif- 
ficulties that  liave  flowed  from  the  unqualified  doctrine  of 
exemplary  damages,  whether  public  policy  does  not  require  a 
return  to  the  doctrine  of  actual  dama2:es  as  embracinfr,  in  its 
broadest  sense  every  conceivable  loss  or  injurj^,  and  in  theory, 
at  least,  giving  the  injured  party  full  indemnity.  By  this 
means  there  would  be  some  check  on  the  tendency  of  juries,  in 
certain  cases,  under  the  influence  of  prejudices  or  biases,  to 
render  extravagant  verdicts.  AVhere  unlimited  and  unre- 
strained discretion  is  assumed  to  exist  in  the  jury,  the  amount 
of  verdicts  will  frequently  be  unreasonably  large,  and  the 
court  must  intervene,  in  an  arbitrary  way,  exercising  its  judg- 
ment against  that  of  the  jury  as  to  the  proper  amount  of 
exemplary  and  punitive  damages.  And  in  determining  this 
question  it  will  be  found  that  the  court  usually  considers  the 
very  elements  that  are,  on  one  theory,  considered  as  actual 
damages,  and  on  another  theory  as  matters  proper  in  aggra- 
vation, or  elements  of  exemplary  damages. 

The  opinion  of  the  court  in  the  case  last  referred  to,  con- 
tains such  an  exhaustive  examination  of  the  question  and  the 
principles  underlying  it,  that  we  feel  authorized  in  copying  a 
portion  of  it.  After  a  careful  review  of  the  cases  in  New  Hamp- 
shire, usually  claimed  to  sustain  the  doctrine  of  exemplary 
damages,*  Nelson,  J.,  remarks: 

4  Sanborn  v.  NHson,  4  N.  H.,  501  (1828);  Whipple  v.  Walpole,  10  Id., 
103  (1839);  Chesley  V.  Chesley,  10  Id.,  327;  Greenleafv.  McCoUey,  14  Id., 
303  (1843);   Merrill  v.  Peaslee,  17  Id.,  423  (1846);  Whitney  v.  Sweet,  22 


78  THE  LAW  OF  DAMAGES. 

Compensatory  and  Exemplary  Damages. 

"  Probably  a  majority  of  the  cases  indicate  the  views  of  the 
courts,  that,  independent  of  any  considerations  concerning  the 
application  of  the  criminal  law,  exemplary  damages  may  be 
awarded  as  punishment,  and  not  as  compensation,  in  cases  of 
express  fraud,  malice,  indignity,  wantonness,  oppression,  insult, 
cruelty,  etc.  Not  one  of  these  cases,  in  my  view  of  them,  treats  of 
any  element  of  damage  such  as  is  called  vindictive,  punitory,  or 
exemplary,  which  might  not  properly  be  considered  in  estima- 
ting tlie  compensatory  damages  which,  under  such  circumstan- 
ces, everybody  concedes  the  injured  party  might  receive.  Not 
one  of  them  goes  so  far  as  to  hold  that  the  same  elements  of 
damage  may  be  three  times  considered  and  damages  three  ♦ 
times  awarded — once  to  the  plaintiff  as  compensation,  again 
to  the  plaintiff  by  way  of  punishing  the  defendant,  and  again 
by  fine  under  the  criminal  law.  Not  one  of  them  goes  so  far 
even  as  to  hold  that  the  same  elements  of  damage  may  be 
twice  considered  and  damages  twice  awarded — once  to  the 
plaintiff  as  a  compensation  for  an  actual  injury  sustained,  and 
again  to  the  plaintiff  as  a  punishment  of  the  defendant;  because, 
wdierever  the  elements  of  exemplary  damages  are  considered, 
they  are  invariably  regarded  and  spoken  of  as  something 
additional  to,  and  other  than  the  elements  going  to  make 
up,  what  is  sometimes  called  actual  damage.  Not  one  of 
them  adopts  the  rule,  in  words,  in  spirit,  in  intention,  or 
in  substance,  expressed  by  the  instructions  in  the  present 
case,  namely,  to  this  effect  that  the  jury  may  consider  all  the 
elements  which  anybody  ever  claimed  could  enter  into  the 
calculation  of  exemplary  damages,  and  give  such  damages  to 

Id.,  10  (1850);  Symonds  v.  Carter,  22  Id.,  458  (1855);  Severance  v.  Healy, 
32  N.  H..  289  (1855);  Hopkins  v.  The  Railroad,  36  Id..  9  (1855);  Knight  v. 
Foster,  39  Id.,  576  (1859);  Page  v.  Parker,  40  Id.,  72;  Perldns  v.  Towle,  43 
Id.,  220  (1861);  Moore  v.  Bowman,  47  Id.,  494  (1867);  Towle  v.  Blake,  48 
Id.,  92  (1868);  Cram  v.  Hadley,  48  Id.,  191  (1868);  Taylor  v.  The  Grand  T. 
R.,  43  Id., 303  (1869j;  Holyoke  v.  The  Grand  T.  R.,  48  Id.,  541  (1869);  Bel- 
knap V.  Boston  &  Me.  R.,  49  Id.,  358  (1870);  Woodman  v.  Nottingham,  49 
Id.,  387  (1870). 


EXEMPLAKY  DAMAGES.  79 

Compensatory  and  Exemplary  Damages. 

the  plaintiff  as  compensation,  to  be  included  in  the  actual 
damages,  and  then  give  the  plaintiff  exemplary  damages  for 
the  '  purpose '  of  punishment,  and  for  the  sake  of  the  public 
example. 

Perhaps  it  would  not  be  erroneous  to  say  that  the  ques- 
tion has  not  been  thoroughly  examined  and  very  carefully 
considered,  but  it  has  been  suffered  to  lean  upon  and  sustain 
itself  by  the  supposed  weight  of  authority,  rather  than  to 
stand  upon  principle  and  inherent  strength.  At  any  rate,  in 
view  of  the  more  recent  cases,  wholly  contradictory  and 
irreconcilable  as  we  have  seen  them  to  be,  *  *  *  we  are 
constrained  to  adopt  the  language  of  Judge  Gushing,  in 
Symonds  v.  Cartel',  and  to  say,  as  he  said,  *  *  *  '  The 
doctrine  in  regard  to  vindictive  damages  seems  to  be  now  in 
such  an  unsettled  condition  as  to  justify  and  call  for  an  exami- 
nation of  the  authorities.'  " 

§  77.  The  opinion  of  Mr.  Justice  Campbell  is  referred  to 
as  sustaining  this  view.  He  says:  "It  is  in  connection  with 
the  various  degrees  of  blameworthiness  chargeable  on  wrong- 
doers, that  the  discussions  have  arisen  on  the  subject  of 
vindictive  damages,  which,  inasmuch  as  they  rest  upon  actual 
fault,  are  by  some  authorities  said  to  be  designed  to  punish 
the  wrong  intent;  while,  according  to  others,  the  damages 
usually  so  called,  are  only  meant  to  recompense  the  sense  of 
injury  which  is  in  human  experience,  always  aggravated  or 
lessened  in  proportion  to  the  degree  of  perversity  exhibited 
by  the  offender.  While  the  term  exemplary  or  vindictive 
damages  has  become  so  fixed  in  the  law  that  it  may  be  diffi- 
cult to  get  rid  of  it,  yet  it  should  not  be  allowed  to  be  used 
so  as  to  mislead;  and  we  think  the  only  proper  application  of 
damages,  beyond  those  to  the  person,  property  or  reputation, 
is  to  make  reparation  for  the  injury  to  the  feelings  of  the 
person  injured.  This  is  often  the  greatest  wrong  which  can 
be  inflicted,  and  injured  pride  or  affection  may,  under  some 


80  THE  LAW  OF  DAMAGES. 

Compensatory  and  Exemplary  Damages. 

circumstances,  justify  very  heavy  damages.  *  *  *  The 
iniury  to  the  feelings  is  only  allowed  to  be  considered  in 
those  torts  which  consist  of  some  voluntary  act  or  very  gross 
neglect,  and  practically  depends  very  closely  on  the  degree  of 
fault  evinced  by  all  the  circumstances.  It  has  been  very  wisely 
left  to  the  jury  to  determine  each  case  upon  its  own  sur- 
roundings, because  the  only  safe  rule  of  damages  in  matters 
of  feeling,  is  to  give  what  to  the  ordinary  apprehension  of 
impartial  men  would  seem  proportionate  to  an  injury  which 
must  be  measured  by  the  instincts  of  our  common  humanity,"  * 

After  referring  to  the  opinion  of  Prof.  Greenleaf  against 
the  doctrine  of  exemplary  damages,  and  that  of  Mr.  Sedgwick 
in  favor  of  it.  Judge  Foster  observes:  "For  a  rule  that  seems 
settled  in  England  and  America,  it  is  quite  remarkable  that 
the  learned  jurists,  who  set  up  and  maintain  doctrines  diamet- 
rically opposite,  should  be  able  to  present  such  formidable 
arrays  of  authorities  in  sup2')ort  of  their  respective  opposing 
theories  as  are  exhibited  in  the  celebrated  note  to  Section  253, 
of  the  late  editions  to  Prof.  Greenleaf 's  book,  and  the  equally 
voluminous  notes  to  the  ISth  Chapter  of  Mr.  Sedgwick's 
Treatise;  and,  that  the  one  should  take  comfort  from  the 
assumed  support  of  Judge  Metcalf,  and  that  the  other  should 
point  triumphantly  to  Mr.  Chancellor  Kent  as  having  decided 
the  controversy  in  his  favor."  "^ 

The  Learned  Judge  proceeds  to  examine  many  English  and 

'  Detroit  Daily  Post  Co.  v.  Mc Arthur,  16  Mich.,  447. 

"  Fay  V.  Parker,  supra.  "  hi  a  note  to  page  38  of  his  treatise  on  damages, 
Mr.  Sedgwick  concludes  that  the  difference  between  himself  and  '  the  critics, ' 
is  after  all  little  more  than  a  verbal  one.  So  indeed  it  is,  if  the  question  be 
simply  whether  certain  elements  of  damage  are  to  be  regarded  as  compensa- 
tory or  exemplary,  the  plaintiff  in  either  event  getting  the  advantage  of  them, 
but  it  manifestly  becomes  a  matter  of  more  than  verbal  consequence  if  the 
plaintiff  is  to  receive  and  the  defendant  to  pay  for  the  same  elements  of 
injury  and  damage  t\vice,  once  as  compensatory  and  again  as  exemplary, 
a  fortiori,  it  is  of  more  than  verbal  consequence,  if  the  defendant  is  required 
to  pay  for  the  same  thing  the  third  time,  by  a  fine  for  the  benefit  of  the 
public."    Id. 


EXEMPLAKT  DAMAGES.  SI 

Compensatory  and  Exemplary  Damages. 

American  cases,  and  maintains  that  the  doctrine  of  exemplary 
damages  is  not  so  well  grounded  in  the  law,  as  has  been 
assumed;  that  the  majority  of  the  cases  claimed  to  sustain  it, 
may  be  explained  on  the  theory  of  compensation;  that  the 
term  exemplary  damages,  was  the  "  smart  money "  of  the 
early  English  cases,  which  term  was  used  to  designate  such 
damages  as  were  given  for  sufferings,  smarts^  physical  or 
mental,  of  the  injured  party,  for  whicli  there  could  be  no 
certain  or  definite  pecuniary  estimate;  and  that  the  doctrine  is 
at  variance  with  the  principles  of  the  law  that  protects  a  per- 
son from  double  punishment,  nemo  debet  his  vexari  jpro  eadem 
causal 

3  The  Learned  Judge  concludes  his  argument  of  the  case  as  follows : 
"This  review  of  some,  of  the  more  prominent  cases  touching  the  subject 
under  consideration,  it  seems  to  me,  must  compel  the  conclusion  which  has 
already  been  indicated,  that  the  modem  *  *  erroneous  idea  of  exemplary 
damages  originated  in,  and  is  in  fact,  the  same  thing  as  damages  for  wounded 
feelings,  as  distinguished  from  damages  for  an  injury  to  the  person  or  prop- 
erty. Damages  for  lacerated  sensibilities,  insulted  honor,  tyrannical  oppres- 
sion, and  so  forth,  being  much  emphasized,  and  often  being  the  principal 
damage  suffered  by  the  plaintiif,  and  language  being  loosely  used,  and  not 
preserving  the  true  distinction  carefully,  or  intemperately  used  (as  Lord 
Campbell  said  of  the  language  of  Lord  Chief  Justice  Pratt,)  in  the  heat  of 
indignation,  which  judges  often  felt  and  could  not  repress  while  contempla- 
ting an  enormous  outrage,  it  finally  came  to  be  understood  that  damages 
might  be  given  in  a  civil  suit  as  a  punishment  for  an  offense  against  the 
public,  an  idea  that  is  certainly  not  plainly  declared  (as  I  think  I  have  unmis- 
takably shown,)  in  the  early  cases. 

I  venture  to  say  that  no  case  will  be  found  in  which  a  judge  explicitly 
told  a  jury  that  they  might,  in  an  action  for  assault  and  battery,  ^\\&  the 
plaintiff  four  damages,  viz:  1.  For  loss  of  pi-operty,  as  for  injury  to  his 
apparel,  loss  of  labor  and  time,  expenses  of  surgical  assistance,  nursing,  etc. 
2.  For  bodUy  pain.  3.  For  mental  suffering,  and,  4.  For  punishment  of  the 
defendant's  crime. 

But  a  critical  examination  of  the  cases  will  show,  as  T  believe,  that  this 
fourth  item  is,  in  fact,  comprehended  in  the  third,  but  has  grown  into  and 
become  a  separate  and  additional  item  by  inconsiderate  if  not  intemperate 
and  angry  instructions,  given  to  juries  when  the  court  was  too  much  incensed 
by  the  exhibition  of  wanton  malice,  revenge,  insult,  and  oppression,  to 
weigh  with  coolness  and  deliberation,  the  meaning  of  language  previously 
used  by  other  judges,  and  instructions  prompted  by  impulses  of  righteous 
indignation,  swift  to  administer  supposed  justice  to  a  guilty  defendant,  but 

6 


82  THE  LAW  OF  DAMAGES. 


Intent  of  Wrongdoer  an  Important  Element. 


§  78.  Intent  of  the  Wrongdoer  an  Important  Element. 

— The  rule  we  have  furnished  not  only  requires  that  the  act 
done  should  be  injurious,  and  that  actual  loss  be  sustained 
thereby  to  the  plaintiff,  but  also  that  it  be  willfully  injurious. 
The  animus  of  the  wrongdoer  is  an  important  question  to  be 

expressed  with  too  little  caution  and  without  pausing  to  reflect  that  the  court 
was  thus  encouraging  the  jury  to  give  the  plaintiff  more  than  he  was  entitled 
to;  to  give  him  in  fact,  as  damages,  the  avails  of  a  fine  imposed  for  the  vin- 
dication of  the  criminal  law,  and  for  the  sake  of  public  example.  The  cir- 
cumstances of  insult  and  outrage  which  called  for  the  heavy  actual  damages, 
as  compensation  for  wounded  honor,  mental  pam,  and  mortified  sensibilities, 
would  naturally  have  no  tendency  to  make  the  court  cautious  in  charging 
the  jury  on  that  point,  and  would  also  have  no  tendency  to  discover  and 
correct  any  error  of  law,  when  the  indignation  of  the  court  was  profoundly 
stirred.  The  'intemperate  language'  of  Lord  Ch.  J.  Pratt,  in  Huckle  v. 
Money,  and  the  effervescing  indignation  of  Mr.  Chief  Justice  Gibbs,  in 
Merst  V.  Hervey,  as  it  seems  to  me,  most  clearly  illustrate  and  confirm  the 
justice  and  truth  of  these  observations.  There  is  no  branch  of  the  law  more 
exposed  to  the  influence  of  just  and  manly  and  honorable  indignation  than 
that  which  involves  the  subject  of  damages  for  a  malicious  wrong,  nor  any 
l)ranch  of  the  law  more  liable  to  be  warped  and  perverted  by  violent  hatred 
of  evil  and  corrupt  motives  and  deeds. 

This  influence  is  manifested  in  the  gi-adual  growth  of  the  modem  doctrine 
of  punitive  damages.  The  result  is,  that  the  wholesale  doctrine  of  dam- 
ages for  mental  pain  and  wounded  feeling,  expressed  in  inconsiderate  lan- 
o-uage  vehemently  announced,  in  circumstances  and  on  occasions  of  judicial 
anger,  irritation  and  excitement,  has  come  to  be  misunderstood  and  mistaken 
for  the  doctrine  of  punitive  damages,  when,  in  fact,  it  is  but  a  branch  of 
the  law  of  compensatory  damages. 

Thus  the  doctrine  of  compensation  for  the  plaintiff"  has  become  the  doc- 
trine of  punishment  for  the  defendant,  importing  into  civil  suits  that  pun- 
ishment which  still  remains  in  criminal  procedure,  and  so,  unfairly  as  well 
as  unconstitutionally  and  illegally,  punisliingan  offender  twice  for  the  same 
crime.  *  *  *  What  is  civil  remedy  but  reparation  for  the  wrong  inflicted 
to  the  injury  of  the  party  seeking  redress,  compensation  for  damages  sus- 
tained by  the  plaintiti"?  How  could  the  idea  of  punishment  be  deliberately 
and  designedly  installed  as  a  doctrine  of  civil  remedies  ?  Is  not  punishment 
out  of  place,  irregular,  anomalous,  exceptional,  unjust,  unscientific,  not  to 
say  absurd  and  ridiculous,  when  classed  among  civil  remedies  V  What  kind 
of  a  civil  remedy  for  the  plaintiff  is  the  punishment  of  the  defendant?  The 
idea  is  wrong?  it  is  monstrous  heresy.  It  is  an  unsightly  and  an  unhealthy 
excrescence,  deforming  the  symmetry  of  the  body  of  the  law.  It  germinated 
as  I  have  said,  in  the  misconceptions  and  inadvertencies  wliich  were  bom  of 
righteous  indignation,  and  a  zealous  eagerness  to  visit  justice  and  punishment 


EXEMPLARY  DAMAGES.  83 


Intent  of  Wrongdoer  an  Important  Element. 


considered  in  such  cases,  as  it  is  in  criminal  cases.     The  wrong 
must  be  intended,  and  the  result  of  a  spirit  of  mischief,  wan- 
tonness, or  of  criminal  inditference  to  civil  obligations,  or  the 
rights  of  others,  from  which  malice  may  well  be  inferred. 
It  may  be  observed  that  where  the  plaintiff  is,  under  the 

for  wrons  upon  a  convicted  oltender  by  means  of  the  first  judicial  process 
■whicli  might  happen  to  bring  his  sins  to  light. 

When  Mr.  Justice  Abbott,  in  Sears  v.  Lyons.  (A.  D.  1818,)  said  the  jury 
•  might  consider  not  only  the  mere  pecuniary  damage  sustained  by  the  plam- 
tiff,  but  also  the  intention  -with  which  the  act  was  done,  whether  for  insult  or 
injury,'  he  spoke  of  the  defendant's  intention  to  insult  the  plaintiff.  And 
for  practical  purposes,  it  might  be  immaterial  whether  the  jury  were  told  that 
they  might  consider  the  defendant's  intention  to  insult  the  plaintiff,  or 
whether  they  were  told  that  they  might  consider  the  injury  to  the  plamtiff 's 
feelings  by  the  studied  insult  inflicted  by  the  defendant.  The  injury  to  the 
plaintiff 's  feelings  is  the  substance  of  the  instruction  in  either  form  of  lan- 
guage, and  for  such  injuiy  compensatoiy  damages  may  be  given.  The  trouble 
and  difficulty  and  embaiTassment  arise  when  such  compensatory  damages 
come  to  be  undei-stood  and  considered  as  punitive  damages;  whereas,  in  truth, 
they  are  no  more  punitive  than  the  amount  of  actual  compensation  for  the 
plaintiff's  pecuniary  loss,  resulting  from  the  dastruction  of  his  property.  And 
yet  this  case,  *  *  *  is  constantly  cited  as  an  authority  for  vindictive 
damages,  when,  in  fact,  it  is  neither  more  nor  less  than  an  authority  forgiving 
compensatory  damages  for  an  injury  to  the  feeUngs.  Now  I  venture  to  say 
that  a  vast  number  of  the  cases  (probably  a  majority  of  them,)  may  be 
explained  in  the  same  way. 

Take  the  case  *  *  *  Merst  v.  Hex-\-ey.  where  the  jury  gave  £500  for 
knocking  a  man's  hat  off.  If  the  defendant  inadvertently  knocked  off  the 
hat  or  smashed  it  do\vn  over  the  plaintiff's  face,  his  hat  and  his  face  were 
hurt  just  as  much  as  if  a  low  viUaui,  or  an  irate  member  of  parliament,  had 
inflicted  the  injury  Isy  intentionally  committing  an  unprovoked  and  unjustifi- 
able assault  and  batteiy,  but  in  the  former  case  the  plaintiff's  feelings,  (call 
them  pride,  vanity,  sensibihties,  delicacy,  or  what  you  please,)  are  damaged 
veiy  little,  if  at  aU;  whereas  in  the  latter  case  a  jury  might  properly  give  £5 
for  the  injury  to  the  plaintiff's  person  and  property— that  is  his  face  or  nose, 
and  liis  hat,  and  perhaps  £49-3,  more  or  less,  a<;cording  to  the  aggravation  of 
the  circumstances,  for  the  injuiy  to  his  feelings.  Is  it  not  quite  natural  that 
many  people  should  regard  the  £495  as  punitive  instead  of  compensator}'  ? 
And  how  natural  it  would  be  for  that  mistake  to  grow  into  law,  so  far  as 
the  law  consists  of  authority  and  precedent?  An  injury  to  the  feelings  a 
thousand  times  greater  than  the  mere  pecuniaiy  damages  which  accompanied 
or  caused  the  injury  to  the  feelings,  is  a  matter  too  refined,  it  may  be  feared,  for 
popular  comprehension  (except,  perhaps,  in  cases  touching  the  honor  of  a 


84  THE  LAW  OF  DAMAGES. 


Intent  of  "Wrongdoer  an  Important  Element. 


circumstances,  entitled  to  exemplary  damages,  lie  should  also 
recover  for  all  those  remote,  but  actual  losses,  sustained. 
The  willful  wrongdoer  is  liable  to  any  party  for  damages  thus 
sustained,  however  remote.  Thus,  on  general  principles,  if  a 
party  willfully  sets  fire  to  the  house  of  another  and  other  houses, 


woman);  and  therefore  juries,  and  quite  frequently  judges,  would  under- 
stand that  they  were  giving  punitive  when  they  were  really  giving  no  more 
than  compensatory  damages.  I  venture  to  affirm  that  the  most  patient 
research  will  be  exhausted  in  vain  in  the  effort  to  find  the  English  case  in 
which  a  judge  ever  deliberately  and  intentionally  told  a  British  jury,  in  any 
form  of  lari??uage,  that  they  might  give  the  plaintiff  four  kinds  of  damage, 
arithmetically  arranged  as  follows : 

1.  Damage  to  plaintiff 's  hat £     1 

2.  Damage  to  his  head  and  face 5s. 

3.  Damage  to  his  feelings 100 

4.  Punishment  of  the  defendant  by  way  of  example,  as  a  protec- 

tion of  the  public  by  enforcement  of  criminal  law  in  a  civil 
case 300 

Total  amount  of  verdict £401  5s. 

The  truth  is,  this  method  of  compensation  is  a  modem  and  American 
invention,  resulting  from  a  misunderstandmg  of  the  loose  and  inaccurate 
forms  of  expression  used  in  the  old  English  cases. 

The  imposition  of  vindictive  damages  is,  by  some,  supposed  to  have  origi- 
nated in  actions  of  tresapss  vi  et  artnis,  slander  and  seduction;  which  means 
that  they  were  first  given  as  damages  for  mental  pain.  But  actual  damage, 
to  use  the  very  common  word  employed  in  the  cases,  being  habitually  referred 
to  things  purely  gross  and  material,  an  injury  to  anything  mental  and  spir- 
itual was  made  good  by  exemplary  damages,  so  called,  which  in  fact,  were 
as  purely  compensatory  as  the  damages  given  for  injuries  to  material  things, 
both  kinds  of  damages  being  compensatory  and  nothing  more. 

If  compensation  were  now  understood,  as  it  formerly  was,  to  be  made  for 
injuries  to  material  substances  only,  and  exemplary  damages  were  now 
understood,  as  they  were  formerly,  to  refer  to  injuries  to  the  spiritual  or 
mental  part  of  human  nature,  there  would  be  no  difficulty  in  the  matter; 
but,  in  progress  of  time,  these  definitions  have  changed;  compensatory 
damages  now  includes  injuries  to  the  mental  and  spiritual  part  of  man- 
kind; and  this  change  of  definition  leaving  nothing  for  'exemplary 
damage,'  as  formerly  understood,  to  operate  upon  and  bo  appli^jd  to,  by  a 
very  natural  mistake  the  term  '  exemplaiy '  has  been  supposed  to  refer  to 
criminal  punishment  for  the  sake  of  public  example;  an  idea  that  was  not 
included  in  'exemplary  damages,'  as  formerly   understood.      What   are 


EXEMPLAEY  DAMAGES.  85 


Infants  and  Non-Compotes. 


remote  from  the  house  set  on  fire,  are  consumed  thereby,  such 
a  wrongdoer  should  be  held  for  ail  the  consequences  of  his 
willfully  wrongful  and  malicious  act,  however  remote/ 

§  79.  The  Rule  not  Applicable  to  Infants  and  Non 
Compotes.— Evil  intent,  as  we  have  seen, is  an  essential  element 
to  the  recovery  of  exemplary  or  punitive  damages.  Hence  an 
infant  or  other  person,  non  compos  mentis^  cannot  be  respon- 
sible for  exemplary  damages,  nor  the  penalties  provided  by  stat- 
ute for  willful  and  malicious  acts,  beyond  actual  compensation, 
for  they  cannot  be  supposed  to  act  maliciously." 


called  exemplary  damages  may  be  given  in  assumpsit  as  in  the  case  of  a 
breach  of  promise  of  marriage.  Baldy  v.  Stratton,  11  Pa.  St.,  322.  Why? 
Evidently  because  of  the  injury  to  the  feelings,  the  disappomtment,  mortifi- 
cation, chagrin,  loneUness,  and  mental  suffeiings  of  many  kinds,  the  aggre- 
gation of  which,  in  the  language  of  the  law  of  England,  is  not  an  actual 
injmy.  A  broken  head  is  perceptible  by  the  sight  and  touch,  but  a  broken 
heart  is  quite  incomprehensible.  This  English  use  of  language  is  well 
enough,  if  everybody  understands  its  meaning;  but  some  people,  misunder- 
standing it,  have  erroneously  supposed  that  it  meant  the  object  of  a  civil  suit 
was  sometliing  more  than  compensation. 

These  remarks  apply  just  as  well  to  a  great  many  American  cases,  emanat- 
ing from  courts  of  the  highest  ability  and  authority;  cases  so  numerous  that 
an  omission  to  refer  to  them  cannot  be  regarded  as  indivious. 

But  no  matter  how  numerous  the  cases,  nor  how  respectable  or  elevated 
the  tribunals  from  which  they  emanate,  if  they  enunciate  a  doctrine  which 
was  planted  in  and  has  grown  out  of  blind  misunderstanding— a  miscon- 
ception that,  so  long  as  it  is  indulged,  must  inevitably  be  arrayed  in  opposi- 
tion to  sound  principles  of  law,  and  the  removal  of  which  will  leave  the  ele- 
ment of  damage  a  plain,  clear,  consistent  and  symmetrical  branch  of  the  law, 
—if  this  fact  is  recognized,  admitted,  and  understood,  the  inquiry  will  be,  not 
how  great  the  array,  nor  how  formidable  the  aspect,  nor  how  venerable  the 
antiquity,  of  adverse  adjudications,  but,  simply,  how  long  (being  finally 
convinced  of  our  mistake,)  shall  we  go  on  with  the  infliction  of  double  and 
treble  punishments  for  a  single  offense;  and  how  long  shall  we  thus  continue 
to  trample  on  sacred  rights,  rooted  and  grounded  in  the  maxims  of  the  com- 
mon law,  and  guaranteed  by  the  constitution  of  our  political  government?  " 
Foster,  J.,  in  Fay  v.  Parker,  supra. 

*  Mayne  on  Dam.,  25,  et  seq.;  ante,  §§  52,  53. 

s  Krom  v.  Schoonmaker,  3  Barb.  (N.  Y.),  647.  For  a  consideration  of  the 
question  of  liability  in  such  cases  for  any  damages,  see,  ^jos^,  note  to  §  617. 


86  THE  LAW  OF  DAMAGES. 


Municipal  Corporations— Englisli  Cases. 


§  80.  Nor  to  Municipal  Corporations— The  same  rule 
would  apply  to  municipal  corporations.  They  cannot,  as 
such,  be  supposed  capable  of  doing  a  criminal  act,  or  a  willful 
and  malicious  wrong,  and  therefore  cannot  be  liable  for 
exemplary  damages;'  nor  could  they,  by  a  parity  of  reasoning, 
become  liable  in  double  or  treble  damages,  under  statutes 
providing  for  such  damages  for  willful  or  malicious  trespasses. 
Such  acts,  if  done  by  its  servants  or  agents,  must  be  without 
authority,  and  ultra  vires.  But  this  does  not  apply  to  private 
corporations,  as  we  shall  have  occasion  to  notice  hereafter. 

§  81.  English  Cases.— The  rule  of  exemplary  damages, 
under  circumstances  of  aggravation,  is  further  illustrated  by 
the  following  English  cases: 

In  an  action  for  false  imprisonment,  the  act  complained 
of  was  an  imlawful  arrest  of  the  plaintiff  as  editor  of  the 
'•Xorth  Briton,"  a  newspaper  published  there,  on  a  general 
warrant  issued  by  the  Secretary  of  State.  The  jury  found 
a  verdict  of  £300,  and  on  a  motion  for  a  new  trial,  on  the 
ground  of  excessive  damages,  Lord  C  J.  Pratt  said : 

"I  cannot  say  what  damages  I  should  have  given  if  I  had 
been  upon  the  jury.  *  *  *  The  personal  injury  done  to 
the  plaintiff  was  very  small,  so  that  if  the  jury  had  been  con- 
fined by  their  oath  to  consider  the  mere  personal  injury  only, 
perhaps  £20  damages  would  have  been  tliought  sufRcient;  but 
the  small  injury  done  to  the  plaintiff,  or  the  inconsiderable- 
ness  of  his  rank  and  station  in  life,  did  not  appear  to  the  jury 
in  that  striking  light  in  which  the  great  point  of  law  touching 
the  liberty  of  the  subject  appeared  to  them  at  the  trial.  They 
saw  the  magistrate  over  the  king's  subjects  exercising  arbi- 
trary power,  violating  Magna  Charta,   and   attempting   to 

6  City  of  Chicago  v.  Martin,  49  111.,  241;  City  of  Chicago  v.  Landless,  52 
Id.,  256;  Harvey  v.  City  of  Rochester,  35  Barb.,  177;  Collins  v.  The  City  of 
Council  Bluffs,  35  la.,  432;  City  of  Decatur  v.  Fisher,  53  111.,  407.  See, 
also,  Wallace  v.  Mayor  of  N.  Y.,  2  Hilt.  (N.  Y.),  440;  9  Abb.  Pr.,  40;  18 
How.  Pr.,  169;  Woodman  v.  Nottingham,  49  N.  H.,  387. 


EXEMPLARY  DAMAGES.  87 

English  Cases. 

destroy  the  liberty  of  the  kin<^doin,  by  insisting  upon  the 
legality  of  this  general  warrant  befoi'e  them.  They  heard  the 
king's  counsel,  and  saw  the  solicitor  of  the  treasury,  endeavor- 
ing to  support  and  maintain  the  legality  of  the  warrant  in  a 
tyrannical  and  a  severe  manner.  These  are  the  ideas  that 
struck  the  jury  on  the  trial,  and  I  think  they  have  done  right 
in  giving  exemplary  damages."' 

So,  in  an  action  in  the  same  country  for  debauching  the 
plaintiiF's  daughter,  a  verdict  was  rendered  for  £50.  On  a 
motion  to  set  it  aside  as  excessive,  Chief  Justice  AVilmot 
said : 

"  Actions  of  this  sort  are  brought  for  example's  sake,  and 
although  the  plaintiff's  loss  in  this  case  may  not  amount  to 
twenty  shillings,  yet  the  jury  have  done  right  in  giving 
liberal  damages." ' 

So,  where  the  defendant  forced  himself  on  the  estate  of 
plaintiff  and  fired  at  game,  and  used  intemperate  language 
towards  the  plaintiff,  and  there  was  a  verdict  for  £500.  A 
motion  for  a  new  trial  was  denied.     Gibbs,  C.  J.,  said: 

"  I  wish  to  know,  in  a  case  where  a  man  disregards  every 
principle  which  actuates  the  conduct  of  a  gentleman,  what  is 
to  restrain  him  except  damages?  *  *  ^  I  do  not  know 
upon  what  principle  we  can  grant  a  rule  in  this  case,  unless 
we  were  to  lay  it  down  that  the  jury  are  not  justified  in  giv- 
ing more  than  the  actual  ]3ecuniary  damages  that  the  plaintiff 
may  sustain."^ 

^  Huckle  v.  Money,  2  Wilson,  205.  See,  also,  Mc Williams  v.  Bragg,  3 
Wis.,  424,  opinion  by  Crawford,  J.,  where  there  is  a  reference  to  many 
authorities,  both  English  and  American. 

8  TuUidge  v.  Wade,  3  Wils.,  18;  Brown  v.  Brewer,  11  M.  &  W.,  625;  Em- 
blem v.  Myers,  6  Hur.  &  Nor.,  54.  See,  also,  in  cases  of  Crim.  Con.,  San- 
bum  v.  Nilson,  4  N.  H.,  501;  and  in  case  of  Seduction,  see  Davidson  v. 
Goodale,  18  Id.,  423. 

9  Merst  V.  Harvey,  5  Taunt.,  442.  See,  also.  Sears  v.  Lyons,  2  Stark., 
317;  Williams  V.  Currie,  1  Man.  Grang.  &  S.,  841;  Whitney  v.  Swett,  22 
N.  H.,  10. 


88  THE  LAW  OF  DAMAGES. 

American  Cases. 

§  82.  Americajl  Cases. — In  actions  of  trespass  to  real 
estate  in  this  country  also,  it  is  held  that  the  jury  may  award 
exemplary  damages,  when  the  trespass  is  accompanied  by 
aggravated  circumstances  and  is  gross  in  itself.' 

Mr.  Greenleaf  maintains  that  in  actions  of  trespass,  vi  et 
arviis,  the  intention  of  the  defendant  is  wholly  immaterial.^ 
And  in  reference  to  injuries  to  the  person  or  reputation,  he 
remarks  that  they  "consist  in  the  pain  inflicted,  whether  bodily 
or  mental,  and  in  the  expense  and  loss  of  property  which  they 
occasion.  The  jury  therefore  in  the  estimation  of  damages, 
are  to  consider,  not  only  the  direct  expense  incurred  by  the 
plaintiff,  but  the  loss  of  his  time,  his  bodily  suffering,  and  if 
the  injury  was  willful,  his  mental  agony;  also,  the  injury  to 
the  reputation,  the  circumstances  of  indignity  and  contumely 
under  which  the  wrong  was  done,  and  the  consequent  public 
disgrace  of  the  plaintiff,  together  with  other  circumstances 
belonging  to  the  wrongful  act,  and  tending  to  the  plaintiff's 
discomfort?"' 

But,  in  TiUetson  v.  CheataTn,  Chief  Justice  Kent,  remarks: 
"The  actual  pecuniary  loss  in  actions  for  defamations,  as  well 
as  the  other  actions  for  tort,  can  rarely  be  computed,  and  are 
never  the  sole  rule  of  assessment;"*  and  Spencer,  J.,  in  the 
same  case  said:  "  In  vindictive  actions,  such  as  for  libel,  defa- 
mation, assault  and  battery,  false  imprisonment,  and  a  variety 
of  others,  it  is  always  given  in  charge  to  the  jury  that  they 


«  BonseU  v.  McCoy,  1  Hurst.,  (Del.,)  520;  Dorsey  v.  Manlove,  14  Cal..  553; 
Greenville,  etc.,  R.  Co.  v.  Partlow,  14  Rich.,  (S.  C.,)  237;  Hecltrcpath  v.  Robert- 
son, 18  Tex.,  858;  Champion  v.  Vincent.  20  Id.,  811.  A  full  citation  of  authori- 
ties will  be  found  m  the  chapter  on  injuries  to  Property.  See  §  730,  et  seq. 
See  also,  Cram  v.  Ilarlley,  48  N.  H.,  191,  (1868J;  Symonds  v.  Carter,  32  Id., 
458,  (1855);  Severance  v.  Healey,  32  Id.,  289. 

'  2  Greenlf.  Ev.,  §  622. 

3  2  Gr.  Ev.,  §  267;  Coppin  v.  Braithwaite,  8  Jur.,  875. 

4  3  John.  56.    See  also,  Knight  v.  Foster,  39  N.  H.,  576,  (1859). 


EXEMPLAEY  DAMAGES.  89 


American  Cases. 


are  to  inflict  damages  for  example's  sake,  and  by  way  of  pun- 
ishing the  defendant.^ 

And  in  an  action  for  willfully  beating  a  horse  to  death,  and 
where  the  judge  instructed  the  jury  that  it  was  a  case  in  which 
they  had  a  right  to  give  "  smart  money,"  the  Supreme  Court 
of  ISTew  York  said:  ''Great  barbarity  was  proved  on  the  part 
of  the  plaintiff,  (in  error).  We  think  the  charge  of  the  judge 
was  correct,  and  should  have  been  better  satisfied  with  the 
verdict,  if  the  amount  of  damages  had  been  greater  and  more 
exemplary."'  So  in  Connecticut,  for  willful  and  malicious 
injuries  to  personal  property,  the  jury  are  not  limited  to  the 
actual  pecuniary  loss  of  the  plaintiff.' 

So,  it  has  been  said,  that  in  aggravated  cases,  jurors  are 
"  daily  charged  to  give  such  damages  as  shall  operate  not  only 
to  remunerate  the  plaintiff,  but  to  punish  the  defendant;  as 
shall  deter  him  and  others  in  like  cases  offending,  from  the 
perpetration  of  similar  enormities;"*  "that  corrective  dam- 
ages given  for  the  sake  of  example,  is  as  old  as  the  law  itself; "  ^ 
"that  a  jury  in  actions  of  trespass  or  tort  may  inflict  exem- 
plary or  vindictive  damages  upon  a  defendant,  having  in  view 
the  enormity  of  the  defendant's  conduct,  rather  than  compen- 
sation to  the  plaintiff;"  that  "  in  many  actions,  such  as  slander, 
libel,  seduction,  etc.,  there  is  no  measure  of  damages  by  which 
they  can  be  given  as  compensation  for  an  injury,  but  are 
inflicted  wholly  with  a  view  to  punish  and  make  an  example 
of  the  defendant;"  '"  and  "  that  smart  money  allowed  by  a  jury, 
and  a  fine  imposed  at  the  suit  of  the  people,  depend  on  the 

5  See  also,  Snvder  v.  Fulton,  34  Md.,  128;  Buckley  v.  Knapp,  48  Mo.,  152; 
Sanderson  v.CaidweU,  45  N.  Y.,  398;  Merill  v.  Pea^ely  17  N.  H.,  540. 
*  Woert  V.  Jenkins,  14  Johns.,  352.     See,  jmst,  §  838,  etseq. 

7  Men-ill  v.  Tariff  Man.  Co.,  10  Conn.,  384.  See  also,  Phillips  v.  Laurence, 
6  Watts  &  S.,  150. 

8  Burr  V.  Burr,  7  Hill,  207,  supra,  opinion  by  Senator  Strong. 

9  Ames  V.  Longstreet,  10  Pa.  St.,  145. 

«o  Opinion  of  Mr.  Justice  Grier,  in  Stimpson  v.  The  Railroads,  2  "Wallace 
Jr.,  (U.  S.),  164. 


90  THE  LAW  OF  DAMAGES. 


statement  of  Eule— Negligence. 


same  principle.  Both  are  penal  and  intended  to  deter  others 
from  the  commission  of  the  like  crime.  The  former,  however, 
becomes  incidentally  compensatory  for  damages,  and  at  the 
same  time  answers  the  purpose  of  punishment."' 

§  83.  Statement  of  the  Rule.— The  general  rule  in  refer- 
ence to  exemplary  or  punitive  damages  is,  that  wherever  the 
injury  complained  of  has  been  inflicted  maliciously  or  want- 
only, or  with  circumstances  of  contumely  or  indignity,  the 
jury  are  not  limited  to  simple  compensation  for  the  wrong 
done,  but  may  give  the  party  injured  exemplary  damages; 
and  malice  implies  not  merely  the  doing  of  an  unlawful  and 
injurious  act,  but  that  it  was  conceived  in  the  spirit  of  mis- 
chief, wantonness,  or  of  criminal  indifference  to  civil  obliga- 
tions and  the  rights  of  others.'* 

§  84.  Negligence— The  rule  in  case  of.— In  case  of  neg- 
ligence, the  liability  to  exemplary  damages  usually  turns  upon 
the  degree  of  negligence  of  the  wrongdoer,  whether  it  be  of 
nonfeasance  or  misfeasance. 

In  cases  of  gross  negligence,  and  especially  so  gross  as  to 
reasonably  imply  malice,  or  where  from  the  entire  want  of 
care,  or  great  indifference  to  the  persons  or  property  of  others, 
malice  will  be  imputed,  the  Aveight  of  authority  would  seem 
to  authorize  the  assessment  of  exemplary  or  punitive  dam- 
ages, as  a  matter  of  law.  But,  to  entitle  the  plaintiff  to  recover 
exemplary   damages,  the  negligence  should  be  flagrant  and 

'  Cooke  V.  Ellis.  6  Hill,  466.  See  also,  Tift  v.  Culver,  3  Id.,  180;  Anch- 
muty  V.  Ham,  1  Denio,  495;  Brizsee  v.  Maybeo,  21  Wend.,  144,  where  it 
is  thought  proper  to  give  smart  money,  in  cases  of  replevin. 

»  Philadelphia,  etc.,  R.  Co.  v.  Quigley,  21  How.,  (U.  S.,)  202;  S.  P.,  Dib- 
ble V.  Morris,  26  Conn..  416;  Dean  v.  Blackwell,  18  111.,  336;  Peoria  Bridge 
Associa.  V.  Loomis,  20  Id.,  235;  Ousley  v.  Harding,  23  Id.,  403;  Bait.,  etc., 
R.  R.  V.  Blocher,  27  Md..  277;  Bell  v.  Monison,  27  Miss.,  68;  Wallace  v. 
Mayor,  etx:.,  of  N.  Y.,  2  Hilt..  440;  9  Abb.  Pr.,  40;  18  How.  Pr..  169;  Far- 
well  V.  Warren,  51  III.,  467;  Green  v.  Ci-aig,  47  Mo.,  90;  New  Orleans,  etc., 
R.  Co.  V.  Statham,  42  Miss.,  607;  Dalton  v.  Beers,  38  Conn.,  529;  Engle  v. 
Jones.  51  Mo.,  316,  (1873). 


EXEMPLARY  DAMAGES.  91 

Negligence. 

culpable,  or  the  circumstances  of  the  case  must  show  a  reckless 
indifference  to  duty,  and  to  the  security  of  the  lives  and  limbs 
of  persons,  or  their  property,  from  which  malice  may  well  be 
inferred,  or  imputed  to  the  defendant/ 

Thus,  it  has  been  held  in  Xew  York,  that  mere  gross  negli- 
gence is  not  sufficient  to  warrant  exemplary  damages;  but 
that  the  neo-ligrence  must  be  so  gross  and  willful  as  to  raise  a 
presumption  that  the  person  in  fault  is  conscious  of  the  proba- 
ble consequences  of  his  carelessness,  and  is  indiflerent  to  the 
injury  liable  to  follow/ 

And  the  English  courts  have  held  that  for  willful  negli- 
gence, either  of  persons,  corporations  or  companies,  the  jury 
may  take  into  consideration  the  motives  of  the  defendant,  and 
if  the  negligence  is  accompanied  with  a  contempt  of  the  plain- 
tiff's  rights  and  conveniences,  the  jury  may  give  exemplary 
damages/ 

3  Welch  V.  Durand,  36  Conn.,  182;  Walker  v.  Erie  R.  Co.,  63  Barb.  (N. 
Y.),  260;  Farwell  v.  Warren,  51  lU.,  467;  Green  v.  Craig,  47  Mo.,  90;  New 
Orleans,  etc.,  R.  Co.,  v.  Statham,  42  Miss.,  607;  Wardi-obe  v.  California 
Stage  Co.,  1  Cal.  118;  Pickett  v.  Crook,  20  Wis.,  358;  Holyoke  v.  Grand 
Trunk  R.  Co.,  48  N.  H.,  544. 

4  WaUace  v.  Mayor,  etc.,  2  Hilt.  (N.  Y.),  440;  Heil  v.  Glanding,  42  Pa. 
St.,  493;  Caldwell  v.  New  Jersey  Steamboat  Co.,  47  N.  Y.,  282;  Cochranev. 
Miller,  13  Iowa,  128,  supra;  where  exemplary  damages  were  held  proper  in 
an  action  against  a  physician,  for  gross  negligence  va.  treatmg  a  disease.  See, 
also,  Bannon  v.  Baltimore,  etc.,  R.  Co.,  24  Md.,  108,  where  the  doctrine  is 
admitted;  Vicksburg,  etc.,  R.  Co.  v.  Patton,  31  Miss.,  156. 

s  Emblen  v.  Meyers,  6  H.  &  N.,  54;  3  L.  J.  Exch.,  71;  BeU  v.  Midland, 
etc.,  R.  Co.,  9  W.  R.,  612;  10  C.  B.  N.  S.,  287;  3  L.  J.  C.  P.,  273. 

In  a  recent  case  in  Iowa  (McKinley  v.  The  C.  &  N.  W.  R.  R.  Co..  Sup. 
Court  Iowa,  Dec.  Term,  1875,  Western  Jurist,  April  1876),  the  court  afiirmed 
the  doctrme  of  the  text,  holding  that  a  raihoad  company  or  other  employer, 
washable  for  actual  damages  caused  by  the  willful  and  even  criminal  acts  of 
the  agent  or  employe,  when  done  in  the  line  of  the  employment,  but  not  for 
exemplary  damages.  In  deUvering  the  opinion  of  the  court.  Cole,  J.,  says: 
' '  Whether  the  intent  of  the  employe  is  good  or  iU,  so  long  as  he  acts 
withm  the  scope  of  his  employment,  the  employer  should  be  bound;  but  his 
liabihty  is  hmited  to  the  actual  damages.  So  far  as  the  element  of  crime 
enters  into  the  act  or  affects  the  measure  of  damages,  the  employe  alone  is 


92  THE  LAW  OF  DAMAGES. 


Liability  of  Principals  for  acts  of  Agents. 


§  85.  Liability  of  Principals  for  ExempLary  Dama- 
ges for  the  Acts  of  their  Agents.— The  question  has  been 
frequently  presented  as  to  the  liability  of  the  principal  to 
exemplary  damages  for  the  gross  negligence  or  wanton  and 
malicious  acts  of  his  servants  or  agents. 

The  question  of  liability  turns  on  the  motives  of  the  wrong- 
doer in  such  eases,  and  no  liability  for  exemplary  damages 
exists,  unless  the  principal  is  culpable;  but  this  culpability 
may  be  inferred  from  circumstances.  And  the  principal  is  not 
liable  for  exemplary  damages  for  the  gross  negligence  or  willful 
wrono-s  of  his  agent  or  servant,  unless  he  has  consented  to,  or 
authorized,  or  ratified  the  servant's  acts."  And  this  would 
seem  to  be  sustained  by  the  soundest  reasoning.  But  this 
doctrine  has  not  been  uniformly  held  by  the  courts,  and  there 
is  considerable  conflict  of  authority  on  this  question. 

In  Maine,  where  a  brakeman,  who  without  provocation,  had 
grossly  insulted  a  passenger,  and  was  continued  in  the  defend- 
ant's employ,  and  an  action  was  brought  to  recover  damages 
for  the  indignity,  the  jury  gave  a  verdict  for  $4,500.     The 

liable.  The  decided  weight  of  authorities  are  in  accord  with  this  view.  We 
need  only  to  refer  to  some  of  them,  without  stopping  to  discuss  or  review 
them.  See  Turner  v.  The  North  Beach  R.  R.  Co.  34  Cal.,  594;  Great  Wes- 
tern R.  R.  Co.  v.  Miller,  19  Mich.,  .305;  Finney  v.  C.  R.  and  R.  Co.,  10  Wis., 
395;  Brooks  v.  Penn.  R.  R.  Co.,  67  Penn.  St.,  339;  St.  Louis  &  Alton  R.  R. 
V.  Dalby,  19  111.,  353;  Little  Miami  R.  R.  Co.  v.  Wetmore,  19  Ohio,  110; 
Isaacs  V.  Third  Av.  R.  Co.,  47  N.  Y.,  122;  Chicago  &  Alton  R.  Co.  v.  Roberts, 
40111.,  503." 

6  Caldwell  v.  New  Jersey  Steamboat  Co.,  47  N.  Y.,  282;  Mendelsohn  v. 
Anaheim  Lighter  Co.,  40  Cal.,  657;  Turner  v.  North  Beach  R.  R.  Co.,  34 
Cal.,  594;  HiU  v.  The  N.  0.  &  Opelousa,  etc.,  R.  Co.,  11  La.  An.,  292; 
Milwaukee,  etc..  R.  R.  Co.  v.  Finney,  10  Wis.,  388;  Boulard  v.  Calhoun,  13 
La.,  An.,  445,  where  it  was  held  that  the  master  was  not  liable  for  the 
unauthorized  acts  of  his  slave.  See,  also,  Hagan  v.  Providence  R.  Co.,  3  R. 
L,  88,  where  he  was  held  not  liable,  unless  the  act  was  authorized  or 
ratified  expressly  or  impUedly  by  the  principal.  See.  also,  Evansville,  etc., 
R.  Co.  v.  Baum,  26  Ind.,  70;  Clark  v.  Newson,  1  Exch.,  131;  Ackerman  v. 
Erie  R.  Co.,  32  N.  J.,  254;  Belknap  v.  Boston,  etc.,  R.  Co.,  49  N.  H.,  358; 
Bowler  v.  Lane,  3  Met.  (Ky.),  311.     See,  also,  cases  cited  supra. 


EXEMPLAEY  DAMAGES.  93 


Liability  of  Principals  for  acts  of  Agents. 


court  held  the  following  extreme  views,  namely:  That  the 
doctrine  of  exemj^lary  damages  was  applicable  to  corporations, 
for  the  torts  of  their  agents  and  servants,  even  where  the 
offense  is  neither  authorized  nor  ratified  by  them ;  and  that  it 
was  more  beneficial  in  its  application  to  private  corporations 
than  to  natural  persons;  as  unlike  natural  persons,  corporations 
can  be  subject  to  no  other  corrective  influence  than  pecuniary 
loss." 

So  in  Ohio  and  Mississippi,  it  has  been  held,  after  a  thorough 
examination  of  the  subject,  that  a  private  corporation  may  be 
liable  for  exemplary  damages  for  such  acts  done  by  its  agents 
and  servants,  which  if  done  by  an  individual  acting  for  himself, 
would  render  him  liable  for  such  damages.' 

,7  Goddard  v.  Grand  Trunk  R.  R.  Co.,  57  Me.,  202.  See,  also,  Cooper  v. 
Mallius.  30  Geo.,  146,  where  it  is  held  that  compensation  should  be,  not 
only  for  the  pecuniary  injury,  but  for  mental  agony  and  physical  suffering; 
Hopkins  v.  The  Railroad,  36  N.  H.,  9. 

8 The  Atlantic,  etc.,  R.  Co.  v.  Dunn,  19  Ohio  St.,  162;  New  Orleans,  etc., 
R.  Co.  V.  Bailey,  40  Miss.,  395;  Same  v.  Hurst,  36  Id.,  660;  Vicksburg,  etc., 
R.  Co.  V.  Patton,  31  Id.,  156. 

In  Goddard  v.  Grand  Trunk  R.  Co.,  supra,  Walton,  J.,  in  delivering  the 
opinion  of  a  majority  of  the  court,  after  refen-ing  to  many  authorities  in 
support  of  the  doctrine  of  exemplary  damages,  and  especially  the  liability  of 
railroad  companies  for  injuries  resulting  from  the  negligence  of  their  agents 
and  servants,  remarks  as  follows: 

"  This  brief  review  of  the  doctrine  of  exemplary  damages  is  not  so  much 
for  the  purpose  of  establishing  its  existence  as  to  coiTCct  the  erroneous  impres- 
sion which  some  members  of  the  profession  still  seem  to  entertain,  that  it  is  a 
modern  invention  not  sanctioned  by  the  rules  of  the  common  law.  We  think 
every  candid-minded  person  must  admit  that  it  is  no  new  doctrine;  that  its 
existence  as  a  fundamental  rule  of  the  common  law  has  been  recognized  in 
England  for  more  than  a  century;  that  it  has  been  there  stringently  enforced 
under  circumstances  which  would  not  have  allowed  it  to  pass  unchallenged 
if  any  pretext  could  have  been  found  for  doubting  its  vaUdity;  that  in  this 
countiy,  notwithstanding  an  early  and  vigorous  opposition,  it  has  steadily 
progressed,  and  that  the  opinions  of  the  courts  are  now  nearly  unanimous  in 
its  favor.  It  was  sanctioned  in  this  state,  after  a  careful  and  full  review  of 
the  authorities  in  Pike  v.  Dilling,  48  Me.,  539,  and  cannot  now  be  regarded 
as  an  open  question. 

"But  it  is  said  that  if  the  doctrine  of  exemplary  damages  must  be 
regarded  as  established  in  suits  against  natural  persons  for  their  own  willful 


94  THE  LAW  OF  DAMAGES. 

Principal  Liable— Mast  Appear  Culpable. 

§  86.  To  Hold  the  Principal  Liable  it  must  Appear 
that  he  is  Culpable.— The  doctrine  of  exemplary  damages  in 
cases  of  negligence  or  malicious  and  aggravated  wrongs,  how- 
ever, loses  much  of  its  force  when  it  is  sought  to  hold  the  prin- 


and  malicious  torts,  it  ought  not  to  be  applied  to  corporations  for  the  torts 
of  their  servants,  especially  where  the  tort  is  committed  by  a  servant  of  so 
low  a  grade  as  a  brakeman  on  a  railway  train,  and  the  tortious  act  was  not 
directly  nor  impliedly  authorized  nor  ratified  by  the  corporation;  and  several 
cases  are  cited  by  defendant's  counsel  in  which  the  courts  seem  to  have  taken 
this  view  of  the  law;  but  we  have  carefully  examined  these  cases,  and  in 
none  of  them  was  there  any  evidence  that  the  servant  acted  wantonly  or 
maliciously,  they  were  simply  cases  of  mistaken  duty;  and  what  these  same 
courts  would  have  done  if  a  case  of  such  gross  and  outrageous  insult  had 
been  before  them,  as  is  now  before  us,  it  is  impossible  to  say;  and  long  expe- 
rience has  shown  that  nothing  is  more  dangerous  than  to  rely  upon  the 
abstract  reasoning  of  courts,  when  the  cases  before  them  did  not  call  for  the 
application  of  the  doctrines  which  their  reasoning  is  intended  to  establish. 
We  have  given  to  this  objection  much  consideration,  as  it  was  our  duty  to 
do,  for  the  presiding  judge  declined  to  instruct  the  jury  that  if  the  acts  and 
words  of  the  defendant's  servant  were  not  directly  or  impliedly  authorized 
nor  ratified  by  the  defendant,  the  plaintiff  could  not  recover  exemplaiy 
damages. 

"  We  confess  that  it  seems  to  us  there  is  no  class  of  cases  where  the  doc- 
trine of  exemplary  damages  can  be  more  beneficially  applied  than  to  railroad 
corporations  in  their  capacity  of  common  carriers  of  passengers;  and  it 
might  as  well  not  be  applied  to  them  at  all,  as  to  limit  its  application  to  cases 
where  the  servant  is  directly  or  impliedly  commanded  by  the  corporation  to 
maltreat  and  insult  a  passenger,  or  to  cases  where  such  an  act  is  directly  or 
impliedly  ratified;  for  no  such  cases  will  ever  occur.  A  corporation  is  an 
imaginary  being.  It  has  no  mind  but  the  mind  of  its  servants.  All  its 
schemes  of  mischief  as  well  as  its  schemes  of  public  enterprise,  are  conceived 
by  hmnan  minds  and  executed  by  human  hands;  and  these  minds  and  hands 
are  its  servant's  minds  and  hands.  All  attempts,  therefore,  to  distinguish 
between  the  guilt  of  the  servant  and  the  guilt  of  the  corporation,  or  the 
malice  of  the  servant  and  the  malice  of  the  corporation,  or  the  punishment 
of  the  servant  and  the  punishment  of  the  corporation,  is  sheer  nonsense,  and 
only  tends  to  confuse  the  mind  and  confound  the  judgment.  Neither  guilt, 
malice  nor  suffering  is  predicable  of  this  ideal  existence  called  a  coporation. 
And  yet,  under  cover  of  its  name  and  authority,  there  is  in  fact  as  much 
wickedness  and  as  much  that  is  deserving  of  punishment  as  can  be  found 
anywhere  else. 

"  And  since  these  ideal  existences  can  neither  be  hung,  imprisoned,  whip- 
ped or  put  in  the  stocks— since  no  corrective  influencS  can  be  brought  to 


EXEMPLAEY  DAMAGES.  95 

Principal  Liable— Must  Appear  Culpable. 

cipal  liable  for  the  malicious  acts  of  tlie  agent,  where  he  has 
not  in  some  manner  authorized  or  approved  of  the  same, 
or  where  the  circumstances  do  not  connect  him  with  the 
wrong  or  the  negligence  which  resulted  in  the  injury.     With- 

bear  upon  them  except  that  of  pecuniary  loss — it  does  seem  to  us  that  the 
doctrine  of  exemplary  damag-es  is  more  beneficial  in  its  application  to  them, 
than  in  its  apphcation  to  natural  persons.  If  those  who  are  in  the  habit  of 
thinking  that  it  is  a  terrible  hardship  to  punish  an  innocent  corporation  for  the 
wickedness  of  its  agents  and  servants,  will  for  a  moment  reflect  upon  the 
absurdity  of  their  own  thoughts,  their  anxiety  will  be  cured.  Careful  engi- 
neers can  be  selected  who  will  not  run  their  trains  into  open  draws,  and 
careful  baggagemen  can  be  secured  who  will  not  handle  and  smash  trunks 
and  band-boxes — as  is  now  the  universal  custom ;  and  conductors  and  brake- 
men  can  be  had  who  will  not  assault  and  insult  passengers;  and  if  the  courts 
wUl  only  let  the  verdicts  of  intelligent  and  upright  juries  alone,  and  let 
the  doctrine  of  exemplary  damages  have  its  legitimate  influence,  we  predict 
these  great  and  growing  evils  will  be  very  much  lessened,  if  not  entirely 
cured. 

"There  is  but  one  vulnerable  point  about  these  ideal  existences  called  cor- 
porations, that  is  the  pocket  of  the  monied  power  that  is  concealed  behind 
them,  and  if  that  is  reached  they  will  wince.  When  it  is  thoroughlj'  under- 
stood that  it  is  not  profitable  to  employ  careless  and  indiff'erent  agents  or 
reckless  and  insolent  servants,  better  men  will  take  their  places,  and  not 
before. 

"  It  is  our  judgment,  therefore,  that  actions  against  corporations  for  the 
willful  and  malicious  acts  of  their  agents  and  servants  in  executing  the  bus- 
iness of  the  corporation,  should  not  form  exceptions  to  the  rule  allowing 
exemplaiy  damages.  On  the  contrary,  we  think  this  is  the  very  class  of 
cases,  of  all  others,  where  it  will  do  the  most  good  and  where  it  is  most 
needed.  And  in  this  view  we  are  sustained  by  several  of  the  ablest  courts 
of  the  country." 

The  authorities  referred  to  are  Railroad  v.  Hurst  36  Miss.,  660;  Hopkins 
v.  Atlantic,  etc.,  Railr^ftd,  36  N.  H.,  9;  2  Redfield  on  Railways,  515;  RaUroad 
V.  Blocher,  27  Md.,  277;  besides  many  others,  showing  the  general  liability 
of  the  master  for  injuries  resulting  from  the  torts  of  the  servant  or  agent. 
The  Learned  Judge  continues  as  follows : 

"But  the  defendants  say,  that  the  damages  awarded  by  the  jury  are 
excessive,  and  they  move  to  have  the  verdict  set  aside  and  a  new  trial 
granted  for  that  reason.  That  the  verdict  in  this  case  is  highly  punitive, 
and  was  so  designed  by  the  juiy,  cannot  be  doubted;  but  by  whose  judg- 
ment is  it  to  be  measured  to  determine  whether  or  not  it  is  excessive?  What 
standard  shall  be  used?  It  is  a  case  of  wanton  insult  and  injuiy  to  the 
plaintiff"  's  character  and  feelings  of  self-respect,  and  the  damages  can  be 


96  THE  LAW  OF  DAMAGES. 

Principal  Liable— Must  Appear  Culpable. 

out  a  showing  of  such  facts  it  would  appear  on  principle 
wrong  to  hold  a  corporation  responsible  for  those  damages 
which  can  be  justified  only  on  the  ground  of  example  or 
punishment.     Why  punish  the  principal  who  has  not  done  the 

measured  by  no  property  standard.  It  is  a  case  where  the  judgment  will  be 
very  much  influenced  by  the  estimation  in  which  character,  self-respect,  and 
freedom  from  insult  are  held.  To  those  who  set  a  very  low  value  on  charac- 
ter, and  think  that  pride  and  self-respect  exist  only  to  become  objects  of 
ridicule  and  sport,  the  damages  will  undoubtedly  be  considered  excessive. 
It  would  not  be  strange  if  some  such  persons,  measuring  the  sensibilities  of 
others  by  their  own  low  standard,  should  view  this  verdict  with  envy,  and 
regret  that  some  body  will  not  assault  and  insult  them,  if  such  is  to  be  the 
standard  of  compensation.  While  others,  who  feel  that  character  and  self- 
respect  are  above  all  price,  more  valuable  than  life  itself  even,  will  regard 
the  verdict  as  none  too  large."  ******* 

"A  careful  examination  of  the  case  fails  to  satisfy  us  that  the  jury  acted 
dishonestly  or  that  they  made  any  mistake  in  their  application  of  the  doc- 
trine of  exemplary  damages.  We  have  no  doubt  that  the  highly  punitive 
character  of  their  verdict,  is  owing  to  the  fact  that  after  Jackson's  [the 
brakeman's]  misconduct  was  known  to  the  defendants  they  still  retained  him 
in  their  service.''  ********** 

"  And  when  we  consider  the  violent,  long-continued  and  grossly  insulting 
character  of  the  assault;  that  it  was  made  upon  a  person  in  feeble  health, 
and  was  accompanied  by  language  so  coarse,  profane,  and  brutal;  that  so 
far  as  appears  it  was  wholly  unprovoked ;  we  confess  we  are  amazed  at  the 
conduct  of  the  defendants,  in  not  instantly  discharging  Jackson.  Thus,  to 
shield  and  protect  him  in  his  insolence,  deeply  implicated  them  in  his 
guilt." 

Although  the  opinion  in  this  case  is  broad  enough  to  visit  exemplary  dam- 
ages upon  the  principal  for  the  willfully  wrongful  acts  of  the  servant  gener- 
ally, it  may  be  considei-ed,  perhaps,  at  least  partially  within  the  rule  laid 
down  in  the  text,  of  liability  to  exemplary  damages  for  such  torts  of  the 
servant  as  are  indorsed  or  approved  by  them.  And  this  might  well  so  be 
held,  on  the  ground  of  presumed  direction  and  authority  to  commit  the  toi-t, 
from  the  subsequent  approval  of  it. 

The  difficulty  in  this  class  of  cases  arises  from  the  adoption  of  the  doc- 
trine of  punitive  damages,  where  there  are  no  evil  motives.  This  doctrine 
is  based  upon  the  idea  of  something  in  addition  to  actual  damages  by  way 
of  punishment.  Such  damages  are  in  the  nature  of  a  penalty  for  a  wrong 
done,  and  this  would,  on  general  principles,  seem  to  require  the  culpability 
of  the  wrongdoer;  that  the  offending  party  be  guilty  of  mahce  and  of  will- 
ful intent  to  do  wrong.  But  how  can  this  be  predicated  of  a  principal,  for 
the  malicious  and  willful  wrongs  of  an  agent  or  servant?    The  absurdity  of 


EXEMPLARY  DAMAGES.  9T 


Principal  Liable— Must  Appear  Culpable. 


injury  or  had  any  sucli  purpose,  and  is  personally  free  from 
fault,  and  especially  where  there  are  no  circumstances  indi- 
cating any  want  of  care  or  any  negligence  in  fact,  on  his 
part  ? "      '  

such  a  doctrine  is  well  set  forth  by  Tapley,  J.,  in  lais  able  dissenting  opinion  in 
the  foreg-oing  case.     He  says: 

"  The  theory  of  punitive  damages  is  the  infliction  of  a  punishment  for  an 
offense  committed.  It  presupposes  the  existence  of  a  moral  wrong,  an 
infraction  of  the  moral  code;  a  wrong  in  which  the  community  has  some 
interest  in  the  redress,  and  in  securing  immunity  from,  in  the  future.  It 
presupposes  also  an  offender,  and  designs  to  punish  that  offender. 

"  To  punish  one  not  an  offender  is  against  the  whole  theory,  policy  and 
practice  of  the  law  and  its  administration.  '  It  is  better  that  ten  guilty  men 
should  escape  than  one  innocent  man  should  suffer.'  Before  the  smallest 
fine  can  be  inflicted,  evidence  leaving  no  reasonable  doubt  of  the  guilt  of  the 
party  to  be  thus  punished  must  be  adduced.  Evidence,  that  he  possessed 
the  evil  intent,  a  wicked  and  depraved  spirit;  that  it  was  he  that  was  regard- 
less of  social  duty. 

"  The  idea  of  punishing  one  who  is  not  particeps  cr/win?s  in  the  wrong 
done,  is  so  entirely  devoid  of  the  first  principles  and  fundamental  elements 
of  law.  that  it  can  never  find  place  among  the  rules  of  action  in  an  intelli- 
gent community. 

If  the  theory  of  actual  compensation  prevailed,  no  difficulty  of  tliis  kind 
would  occur,  and  in  a  majonty  of  cases  the  result  would  be  practically  the 
same. 

For  instance,  in  the  case  we  have  been  considering,  on  the  theory  of  com- 
pensation as  a  rule  of  damages,  the  jury  might  properly  have  considered 
the  injury  to  the  plaintiff 's  feelings  by  the  outrageous  and  wholly  unwar- 
ranted assault;  his  wounded  pride  and  self-respect;  his  mental  pain  and 
suffering  caused  by  the  assault,  and  the  feeling  of  self-degradation  that 
necessarily  resulted  from  it.  The  jury  might  properly  have  considered  also, 
the  character  and  standing  of  the  plaintiff,  and  his  frail  and  feeble  physical 
condition,  with  all  the  aggravating  circumstances  of  the  violent,  long-con- 
tinued, and  grossly  insulting  character  of  the  assault.  The  result  of  the 
finding  of  the  juiy  on  the  question  of  damages  under  such  a  showing,  prob- 
ably would  not  have  been  other  than  that  found  by  them,  for  they  would 
practically  have  had  the  same  latitude  and  would  have  been  influenced  by 
the  same  considerations  as  under  the  doctrine  of  exemplary  damages,  and 
this  without  a  technical  violation  of  the  principle  involved  in  the  theory  of 
exemplary  damages.     See,  ante,  §  73,  et  seq. 

Sher.  and  Red.  on  Neg.,  §  601.     Where  the  captain  of  a  vessel  beat  a 

seaman  so  severely  as  to  deprive  him  of  the  use  of  his  limbs,  the  owners  of 

the  vessel  being  innocent  of  the  tort,  were  held  liable  only  for  actual  and  not 

punitive  damages.     McGuire  v.  The  Golden  Gate,  McDill,  (U.  S.  C.  C.,)  104. 

T 


98  THE  LAW  OF  DAMAGES. 

Principal  Liable— Must  Appear  Culpable. 

§  87.  To  hold  the  principal  in  such  cases  for  exemplary 
damages,  is  against  the  general  principles  of  the  law  of  exem- 
plary damages,  and  violates  the  sense  of  justice. 

Many  of  the  decisions  are  not  clear  as  to  the  basis  of  the 
opinions  that  seem  to  support  the  doctrine  of  liability  of  the 
principal  to  exemplary  damages  in  such  cases.  Of  course,  if 
the  principal  has  employed  incompetent  agents,  or  has  knowl- 
edge of  their  incompetency,  or  knowingly  permits  such  negli- 
gence in  them,  it  would  make  him  a  party  thereto;  or  if  he 
indorses  such  acts  of  negligence  in  the  agent,  he  might  prop- 
erly be  held  liable  in  case  of  injury  therefrom,  for  exemplary 
damages. 

In  the  case  of  Boivler  v.  Za?ie,  supra,  the  court  seems  to 
place  the  liability  on  the  ground  of  carelessness,  negligence, 
and  unfitness  of  the  agents,  who  were  the  cause  of  the  injuiy. 
This  unfitness  might  well  be  a  cause  for  holding  the  principal 
liable,  if  he  had  knowledge  of  the  same.' 

'  See,  Sher.  &  Red.  on  Neg.,  §§  600,  601  and  notes.  The  neglig-ence 
of  the  superintending  agent  has  been  held  to  be  the  negligence  of  the  cor- 
poration.    Id. 

This  subject  was  ably  discussed  in  The  Western  Jurist  for  April,  1876,  by 
the  Hon.  N.  M.  Hubbard  as  follows:  ''Are  railroad  companies  liable  in 
exemplary  damages  for  the  malicious  acts  of  their  servants,  committed  tvith- 
out  the  authority  of  the  company,  and  without  subsequent  ratification  or 
approval? 

Not  many  years  ago  the  authorities  were  weU  agreed  that  a  master  was 
not  liable  even  for  actual  damages  by  reason  of  the  willful  and  malicious 
act  of  his  servant.  The  argument  was  this :  The  moment  a  sei-vant  com- 
mitted such  an  act,  it  constituted  a  departure  from  the  master's  service — he 
was  no  longer  engaged  in  the  busmess  of  the  master,  and  the  master  was 
therefore  not  liable.  De  Camp  v.  R.  R.  Co..  12  Iowa,  348,  and  cases  cited; 
Cook  v.  R.  R.  Co.,  30  Iowa,  202;  Sher.  &  Red.  on  Neg.,  Sees.  64.  65,  66,  and 
cases  cited. 

But  the  more  modern  authorities  hold,  and  some  statutes  pro^'ide,  that 
the  master  is  liable  for  the  malicious  acts  of  his  servant  committed  while  on 
duty  and  within  the  general  scope  of  his  employment.  17  N.  Y.,  .362;  26 
Ind.,  72;  47  N.  Y.,  125;  104  Mass.,  117;  19  Ohio  St.,  110;  19  Mich.,  315;  37 
Cal.,  400;  57  Me.,  202;  10  Wis.,  393;  27  Md.,  287;  19  lU.,  353;  and  many 
other  cases. 

It  would  seem  that  this  is  going  quite  far  enough  for  public  security,  and 


EXEMPLARY  DAMAGES.  99 

Degree  of  Gross  Negligence. 

§  88-  Degree  of  Gross  Negligence  .—It  is  difficult  many 
times  to  draw  the  line  between  that  gross  negligence  which 
would  usually  visit  on  the  offending  party  exemplary  damages, 
and  that  less  degree  of  gross  negligence,  where  the  offending 
party  would  not  be  so  liable.     But  even  where  the  facts  fall 

that  the  damages  in  such  cases  should  be  strictly  compensatory.  However, 
some  late  cases  have  gone  so  far  as  to  hold  that  a  railway  company  is  liable 
not  only  in  actual,  but  in  exemplary  damages,  for  the  malicious  act  of  their 
servant,  although  the  company  neither  authoiized  nor  ratified  the  act.  Upon 
principle,  the  doctrine  has  no  foundation.  It  analyzes  thus:  Exemplary 
damages  are  never  given  except  where  malice,  violence,  fraud  or  oppression 
exist.  In  all  these  the  intent  gives  the  foundation  for  exemplary  damages. 
The  intent  of  the  servant  cannot  be  the  intent  of  the  company,  unless  the  act 
be  either  authorized  or  approved  by  the  company.  Hence,  there  is  no  pos- 
sible logical  method  of  putting  a  railway  company  within  the  rule  allowing 
exemplary  damages  for  the  malicious  acts  of  its  inferior  servants,  unless  it 
be  said  that  each  servant  has  the  same  power  to  bind  the  company  that  its 
superintendent  or  general  officers  have.  That  this  is  not  true  in  relation  to 
money  contracts  will  be  readdy  admitted.  A  locomotive  engineer  may  not 
bind  the  company  to  a  freight  contract;  but  it  is  insisted  that  if  he  mali- 
ciously run  his  engine  over  a  horse,  the  railway  company  must  answer  not 
only  for  the  value  of  the  horse,  but  in  exemplaiy  damages,  although  it  in 
no  way  authorized  or  approved  the  act.     R.  R.  Co.  v.  Bailey,  40  Miss..  395. 

Exemplary  damages  are  given,  not  as  compensation  for  mjury,  but  as  a 
punishment,  and  a  warning  to  deter  others  from  like  acts.  But  if  it  be  con- 
ceded that  the  superintending  agent  of  the  railway  company  was  guilty  of 
no  negligence  in  the  employment  of  the  servant,  and  neither  authorized  nor 
ratified  the  malicious  act  of  the  servant,  what  occasion  is  there  for  punish- 
ment? And  if  upon  the  first  information  of  the  act  the  company,  discharges 
the  servant,  what  more  can  be  done  to  prevent  a  recurrence  ? 

For  example :  If  a  brakeman  commits  a  willful  assault  upon  a  passenger, 
and  the  fact  is  brought  to  the  attention  of  the  company  or  its  superintend- 
ent, and  he  is  still  continued  in  sendee,  as  in  the  case  of  Goddard  v.  R'y  Co., 
57  Me.,  202.  it  may  be  well  said  the  company  have  ratified  the  act,  and  may 
be  held  to  exemplarj'  damages;  if  on  the  other  hand,  the  brakeman  had 
been  promptly  discharged  on  the  first  knowledge  of  his  mahcious  act,  and 
the  previous  conduct  of  the  brakeman  had  been  that  of  a  peaceable,  quiet 
gentleman,  upon  what  principle  or  reason  ought  the  company  to  be 
punished  ? 

If  such  a  doctrine  can  be  supported  at  all,  it  must  be  upon  the  ground  that 
the  courts  are  of  the  opinion  that  public  policy  and  the  safety  of  the  travel- 
ing public  require  that  railway  corporations  shall  guarantee  that  none  of 
their  servants  shall  commit  crimes.  That  such  a  doctrine  is  new  cannot  be 
denied;  that  it  is  unjust  seems  not  difficult  to  establish.      '  What  never  has 


100  THE  LAW  OF  DAMAGES. 

Degree  of  Gross  Negligence. 

below  that  gross  and  aggravated  cliaracter  that  would  justify 
a  punishment  in  damages,  the  liability  is  frequently  so  extended 
on  principles  which  we  have  observed,  beyond  the  limits  of 
direct  and  proximate  consequences,  as  to  afford  an  equal 
amount  of  damages,  or  at  least  a  complete  indemnity.     And 

been,  never  ought  to  be.'  No  such  doctrine  has  ever  been  applied,  except 
to  railway  companies.  In  all  the  accidents  through  negligence  and  wanton- 
ness, in  all  the  manufacturing  establishments  and  other  branches  of  industry, 
where  servant  labor  is  employed,  no  such  doctrme  has  been  applied.  In  all 
other  pursuits  of  life,  the  law  recognizes  personal  responsibility  for  personal 
intentional  wrong. 

Pei^onal  injury,  and  injuries  to  property  from  malice  and  wantonness,  are 
not  uncommon  among  the  lower  classes  of  the  best  civilized  society.  Ordin- 
arily both  the  pei-petrator  and  the  victim  are  pecuniarily  irresponsible,  and 
money  suits  are  not  frequent.  But  the  invention  of  railways  has  brought 
into  existence  a  new  and  able  paymaster  for  brawls,  rows,  and  broken  heads. 

It  is  generally  known  that  there  is  a  class  of  men  who  seek  difficulty 
with  train  men.  If,  by  an  impudent  look  or  remark,  or  by  a  succession 
of  them,  ******  ^]jgy  gg^jj  succeed  in  being 
assaulted  by  a  brakeman,  they  are  at  once  upon  the  high  road  to  for- 
tune. The  railway  company  is  then  to  i-espond  in  exemplary  damages, 
although  it  had  neither  authorized  nor  ratified  the  assault,  and  was  guilty  of 
no  negligence  in  the  employment  of  the  servant.  The  weight  of  authority, 
however,  is  against  any  such  doctrine.  Turner  v.  R.  R.  C,  34  Cal.,  594;  G. 
W.  R'y  Co.  V.  Miller,  19  Mich.,  315;  Daily  Post  v.  McArthur.  16  Mich..  447; 
Finney  v.  R.  R.  Co.,  10  Wis.,  383;  Dalby  v.  R.  R.  Co.,  19  111..  353;  Bridge 
Co.  V.  Loomis,  20  Id.,  236;  Hager  v.  R.  R.  Co.,  3  R.  I.,  88;  Anderson  v.  R. 
R.  Co..  3  Vroom,  N,  J..  254;  Porter  v.  R.  R.  Co..  Id.,  261;  Seymour  v.  R.  R. 
Co.,  3  Bissell,  U.  S.  C.  C,  43;  Mendelsohn  v.  Anaheim  Lighter  Co.,  40  Cal., 
657;  R.  R.  Co.  V.  Quigley,  21  Howard.  202;  Caldwell  v.  Steamboat  Co.,  47 
N.  Y.,  282;  Amiable  Nancy,  3  Wheaton,  546;  Sh.  &  Red..  Neg.,  §§  600, 
601;  11  La.  Ann.,  292. 

In  34  Cal.,  a  colored  woman  was  put  off  a  street  car.  The  court  thought 
there  was  no  proof  of  malice  on  the  part  of  the  conductor,  and  if  there  was, 
there  was  no  proof  tending  to  .show  that  the  '  defendant  prompted  it  in 
advance,  or  approved  of  it  afterward.'  Verdict  for  $700,  and  set  aside  as 
excessive.  It  was  ruled:  1.  Defendant  is  liable  for  actual  damages  only. 
2.  The  conductor  alone  is  liable  for  malice,  if  any. 

The  case  in  40  Cal..  was  for  malicious  act  of  servant  of  defendant  in 
destroj'ing  a  quantity  of  lumber.  It  was  not  proved  that  defendant  author- 
ized or  consented  to  the  malicious  act  of  its  agent,  or  approved  it  afterward. 
Defendant  held  not  liable,  and  the  rule  in  the  Turner  case  re-affinued. 

In  Miller's  case,  19  Mich.,  the  conductor  wrongfully^  put  him  off  the  cars, 
believing  he  had  not  paid  fare,  when  in  fact  he  had  paid.    Plaintiff  recov- 


EXEMPLARY  DAMAGES.  101 


Degree  of  Gross  Negligence. 


when  there  are  some  doubts  in  reference  to  the  application  of 
the  rule  of  punitive  damages,  the  courts  frequently  favor  an 
extension  of  liability,  to  all  the  remote,  but  directly  traceable 
consequences  of  the  wrong. 

Even  in  cases  where  exemplary  damages  are  allowable,  it  is 

ered,  but  the  court  held:  '  For  those  aggi-avations  wliich  may  arise  out  of 
the  wantonness  and  malice  of  the  conductor  when  acting  within  the  line  of 
his  duty,  the  company  is  not  liable  '      Actual  damaj^es  only  given. 

The  case  cites  and  approves.  16  Mich.,  where  exemplary  damages  were 
not  allowed  in  a  case  of  libel,  and  the  managing  officer  of  the  corporation 
did  not  know  or  approve  the  pubUcation,  but  the  same  was  done  by  an  agent 
of  the  company. 

In  Finney's  case,  10  Wis.,  the  conductor  had  put  him  off  the  train  wrong- 
fully, before  he  arrived  at  the  station  to  which  he  had  bought  a  ticket.  The 
plaintiff  was  not  allowed  to  recover  for  'indignity,'  but  '  actual  damages 
only,  even  if  the  act  of  the  conductor  was  willful. ' 

The  case  in  19  111.,  was  an  action  for  damages  by  plaintiff  for  being  beaten 
and  put  off  the  cars  for  refusing  to  pay  extra  fare  #!?  account  of  not  having 
procured  a  ticket.  The  ejection  was  held  to  be  wrongful  and  plaintiff 
entitled  to  recover,  but  not  for  the  malice, of  the  conductor— the  conductor 
alone  liable  for  that. 

The  20  lU.,  affirms  the  doctrine  that  exemplary  damages  can  only  be  given 
when  malice,  fraud  or  oppression  exists. 

In  3  R.  I.,  plaintiff  sued  for  tortious  act  of  servant.  The  court  below 
instructed  the  jury  that  punitive  damages  were  not  to  be  allowed  against  the 
company,  unless  it  participated  expressly  in  the  wrongful  acts  of  the  agent, 
or  impliedly  authorized  or  approved  it  before,  or  after,  it  was  committed. 
The  Supreme  Court  held  the  instruction  correct,  and  also  '  where  the  prin- 
cipal is  prosecuted  for  the  tortious  act  of  his  servant,  unless  there  is  proof 
to  implicate  tlie  principal  and  make  him  particeps  criminis  of  his  agent's 
acts,  such  damages  cannot  be  allowed;  and  when  the  principal  neither 
authorizes  nor  ratifies  the  ac^nd  the  criminality  is  as  much  against  him  as 
against  any  other  member  of  society,  it  is  enough  that  the  principal  shall 
be  hable  in  compensatory  damages.' 

Ackerman,  32  N.  J.,  (3  Vroom)  brought  an  action  for  injuxy  by  reason  of 
gross  negligence  in  lea-ving  a  s-witch  open.  The  circuit  court  held,  only 
actual,  and  not  exemplary,  damages  could  be  recovered.  The  Supreme 
Court  say  '  this  ruhng  was  correct,  inasmuch  as  there  was  no  attempt  to 
prove  any  neglect  of  the  company  as  contradistinguished  from  its  subordin- 
ate agents.  In  fact  the  only  fault  or  negligence  complained  of  was  that  of 
the  employes  of  the  company.  When  a  railroad  company  adopts  all  needful 
rules  and  regulations  for  the  safety  of  the  passenger,  and  employs  competent 
agents,  whose  duty  it  is  to  see  that  those  rules  and  regulations  are  observed. 
I  do  not  think  that  the  company,  in  case  of  injury  to  the  passenger,  happening 


102  THE  LAW  OF  DAMAGES. 


Degree  of  Gross  Negligence. 


proper  to  introduce  evidence  of  all  actual  damages,  not  only  of 
a  pecuniary  nature,  but  the  facts  and  circumstances  connected 
with  the  wrong,  showing  the  degree  of  malice  and  the  results 
of  the  wrong;  such  as  the  circumstances  of  oppression,  out- 
rao-e  and  indignity  accompanying  the  wrong,  and  the  mental 


by  reason  of  the  failure  of  the  agents  to  perform  this  duty,  can  be  held  liable 
for  punitive  damages.  If,  however,  the  company,  as  such,  is  in  fault,  a 
different  rule  applies. 

The  company,  for  its  own  carelessness,  may  be  jointly  held  liable  for  smart 
money.  This  rule  does  not  prevail  when  the  carelessness  is  only  that  of  a 
subordinate  agent.  There  is  no  justice  in  punishing  the  company  after  it 
has  done  all  in  its  power  to  prevent  injury.' 

iSeymore  (3  Bissell  U.  S.  C.  C,  43)  was  a  passenger,  and  in  stepping  from 
the  car  to  the  platform  of  the  depot,  put  her  foot  on  a  piece  of  ice,  slipped 
and  fell,  dislocating  her  ankle.  The  Court,  Davis,  J.,  charged  the  jury  that 
if  tliey  found  for  the  plaintiff,  they  must  give  her  no  more  than  would  com- 
pensate her  for  the  injury,  and  could  not  add  anything  by  way  of  punishing 
the  defendant. 

The  action  in  21  Howard,  was  for  libel,  published  by  the  board  of  directors 
of  the  railway  company,  and  it  was  held  that  an  action  would  lie,  and  if  the 
publication  was  malicious,  exemplary  damages  might  be  given,  it  being  the 
act  of  the  corporation  itself,  by  authority  of  -which  the  publication  was  made. 
A  suit  was  brought  against  the  owners  of  the  privateer  '  Scourge '  for  dam- 
ages caused  by  the  plundering  of  the  Nancy,  and  for  assault  of  the  crew, 
and  wanton  outrages,  etc.  The  court  below  gave,  not  only  the  actual  dam- 
ages, but  damages  for  personal  injuries,  and  then  damages  in  $500  for  '  per- 
sonal wrongs.'  Story,  J.,  says:  'If  tliis  suit  was  against  the  original 
wrongdoers  it  might  be  proper  to  go  yet  farther  and  visit  upon  them  in  the 
shape  of  exemplary  damages,  the  proper  punishment,  which  belongs  to  such 
lawless  conduct.' 

*  *  *  In  speaking  of  the  owners  of  the  Scourge  he  says :  '  They 
are  innocent  of  the  demerit  of  this  transaction,  having  neither  directed  it, 
nor  countenanced  it,  nor  participated  in  it  in  the  slightest  degree.  Under 
such  circumstances  we  are  of  opinion  that  they  are  bound  to  repair  all  the 
real  injuries  and  personal  wrongs  sustained  by  the  libelants,  but  they  are 
not  bound  to  the  extent  of  vindictive  damages.'  And  the  $500  for  personal 
wrongs  was  disallowed.     Amiable  Nancy.  3  Wheat.,  546. 

The  action  in  47  N.  Y.,  was  for  injuries  sustained  by  a  passenger  by  the 
explosion  of  the  steamboat,  and  the  question  was  whether  the  boiler  was 
properly  constructed  and  of  proper  material.  It  was  held  that  corporations 
are  not  exempt  from  the  infliction  of  punitive  damages  in  a  proper  case,  and 
quote  S.  &  K.  Ncg.,  §  600,  '  in  any  case  where  exemplary  damages  may  be 
recoverable  against  the  servant,  if  it  appears  that  the  corporation  had  rea- 


EXEMPLARY  DAMAGES.  103 


Degree  of  Gross  Negligence. 


and  bodily  suffering  in  consequence  thereof,  though  not  capa- 
ble of  any  accurate  pecuniary  estimate;  and  the  jury  are 
always  at  liberty  to  consider  the  malice  of  the  defendant,  the 
insulting  character  of  his  conduct,  the  rank  in  life  of  the 
respective  parties,  and  all  the  circumstances  of  outrage,  and 

sonable  notice  of  >tegUf/enf  habits  of  the  servant,  or  if  he  left  the  servant 
without  control  or  supervision  in  the  work.' 

There  are,  however,  authorities  that  hold  to  the  contrary.  Perhaps  the 
leading  case  is  R.  R.  Co.  v,  Bailey,  40  Miss.,  395.  The  decision  is  based  upon 
the  maxim,  '  qui  facit  per  aliiim,  facit  per  se.'  A  more  total  perversion 
of  a  maxim  cannot  well  be  conceived.  That  the  doctrine  of  principal  and 
agent  has  no  reference  to  criminal,  malicious  acts  by  servants  or  agents,  is 
too  elementary  to  talk  about.  The  whole  opinion  in  this  case  is  devoid  of 
any  legal  learning,  and  perhaps  the  most  conspicuous  example  of  judicial 
prejudice  against  railroads  to  be  found  in  the  books.  It  asserts  the  doctrine 
squarely,  however,  that  railroads  are  liable  for  the  malicious  acts  of  their 
servants,  and  that  exemplaiy  damages  may  be  given,  although  the  company 
was  guilty  of  no  fault  in  the  selection  of  the  servant,  and  in  no  manner 
authorized  or  ratified  the  act. 

There  are  several  other  cases  in  Mississippi  holding  the  same  doctrine. 
R.  R.  Co.  V.  Blocker,  27  Mo.,  2S7,  holds  a  similar  doctrine  also. 

The  foregoing  are  the  only  cases  that  we  have  found  that,  in  fact,  sup- 
port the  doctrine. 

There  are  many  cases  cited  as  supporting  it,  but  they  do  not.  Among 
them  the  following:  R.  R.  Co.  v.  Dunn,  19  Ohio  St.,  162;  Goddard  v.  R.  R. 
Co.,  57  Me.,  202;  Bryant  v.  Rich,  106  Mass.,  180. 

Dunn's  case  was  an  action  for  expelling  him  from  the  cars — verdict  $125. 
The  judge  charged  the  jury,  that  if  they  found  the  plaintiff  was  entitled  to 
recover,  they  should  allow  him  for  loss  of  time,  expense  and  inconvenience 
suffered.  If  the  conductor  treated  him  in  an  insolent  and  insulting  man- 
ner, he  may  be  compensated  for  the  mjuries  to  his  sensibilities. 

If  there  were  circumstances  of  '  insult  and  indignity'  they  might  allow 
him  whatever  was  a  fair  and  reasonable  attorney's  fee  for  procuring  and 
paying  counsel.  It  appeared  in  the  pleading  and  evidence  that  the  conductor 
was  required  by  the  rules  of  the  company,  in  like  cases  of  non-payment  of  fare, 
to  stop  the  train  and  expel  the  passenger,  and  that  the  compamj  justified  the 
act  in  this  case.  Three  of  the  judges  held  that  the  company  was  Hable  for 
exemplary  damages  and  that  the  charge  to  the  jury  was  right;  the  other  two 
judges  dissented.  Welch,  J.,  who  delivered  the  dissenting  opinion,  says 
•there  is  no  English  case  to  support  any  such  doctrine,  as  to  hold  a  party 
criminally  Liable  in  any  sum,  for  the  acts  of  his  agent,  unless  where  the  busi- 
ness in  which  he  was  employed  was  criminal  in  itself,  or  unlawful.  The  only 
American  case  which  can  be  cited  in  support  of  it  is  that  of  R.  R.  Co.  v. 
Bailey,  40  Miss.,  453,  decided  in  1866,  and  that  the  American  doctrine  is  that 


104  THE  LAW  OF  DAMAGES. 

Degree  of  Gross  Negligence. 

thereupon    award    such   damages  as  in  their  judgment    the 
circumstances  may  require. 

Says  Prof.  Greenleaf:  ''  The  jurj-,  in  tlie  estimation  of 
damages,  are  to  consider,  not  only  the  direct  expenses  incurred 
by  the  phiintiiF,  but  the  loss  of  time,  his  bodily  suffering, 
and  if  the  injury  was  willful  his    mental   agony   also;    the 

expressed  by  the  court  in  the  case  of  'Amiable  Nancy,'  3  Wheaton  546." 
Two  thmgs  will  be  noted  in  this  case : 

1.  That  the  company  had  ratified  the  act  of  the  conductor,  and  therefore, 
if  it  was  a  case  for  exemplary  damages,  the  company  would  be  liable  for  them. 

2.  The  Supreme  Court  of  Ohio  treats  ^injuries  to  sensibilUks,''  the  same 
as  exemplary  damages,  and  if  exemplary  damages  could  not  be  given,  noth- 
ing could  be  given  for  insidt  and  indignity. 

So  the  case  is  not  an  authority  for  exemplaiy  damages,  but  is  an  authority 
that  insult  and  mdignity  are  in  the  nature  of  exemplary  damages  and  not 
compensatory.  Goddard's  case,  57  Me.,  202,  was  an  action  for  a  gross  assault 
by  a  brakeman,  plaintiff  being  a  passenger  and  sick,  for  not  j)resenting  a 
ticket  when  called  for,  when  in  fact  he  had  given  up  his  ticket  to  the 
conductor,  and  so  told  the  brakeman.  A  verdict  was  rendered  for  near 
$5,000,  and  was  put  upon  two  grounds:  1.  A  breach  of  contract  to  cany 
safely.     2.  Tort  and  exemplaiy  damages. 

It  appeared  in  evidence  that  the  defendant  was  notified  of  the  conduct  of 
the  brakeman  and  retained  him  in  its  service,  and  the  court  holds  tliis  a  rati- 
fication and  approval  of  the  assault. 

It  is  true  the  court  held  that  exemplary  damages  were  recoverable,  if  the 
act  had  not  been  ratified  by  the  company;  but  as  no  such  case  was  before  the 
court,  it  was  dictum. 

In  Bryant  v.  Rich,  the  steward  of  a  steamboat  assaulted  and  beat  a  passen- 
ger without  provocation.  The  extent  of  mjury  is  not  shown.  No  instructions 
were  given  on  the  subject  of  damages,  and  none  were  asked,  nor  was  the  sub- 
ject discussed  in  the  trial  comrt.    Tlie  plaintiff  recovered  $8,000.00. 

No  motion  for  a  new  trial  was  made  on  the  ground  of  excessive  damages, 
and  for  that  reason  the  Supreme  Court  refused  to  entertain  the  question.  The 
trial  court  instructed  the  jury  that  defendant  was  not  liable  for  ttie  assault 
made  by  the  steward,  because  he  was  not  in  the  line  of  his  duty;  but  the  tes- 
timony showed  that  the  assault  lasted  from  ten  seconds  to  ten  minutes,  and 
he  submitted  it  to  the  jury  to  say  whether  it  lasted  so  long  that  the  officers  of 
the  boat  had  time  to  have  stopped  the  assault,  and  were  guilty  of  negligence 
because  they  did  not;  and  if  they  so  found,  then  the  defendant  was  Uable  for 
all  the  injury  inflicted,  after  the  assault  and  beating  might  have  been  stopped. 
The  Supreme  Court,  instead  of  affiiiuing  the  case  as  well  tried  below,  put  the 
right  of  recovery  on  the  ground  that  defendant  was  Uable  as  for  a  breach  of 
contract  to  carry  safely,  and  also  that  defendant  was  iikble  for  the  criminal 


EXEMPLARY  DAMAGES.  105 


Criminal  Liabiliti',  Prosecution  and  Punishment. 


injury  to  his  reputation,  the  circumstances  of  indignity  and 
contumely  under  which  the  wrong  was  done,  and  the  conse- 
quent public  disgrace  to  the  plaintiff,  together  with  any  other 
circumstances  belonging  to  the  wrongful  act,  and  tending  to 
the  plaintiff's  discomfort.'"' 

§  89.  Criminal  Liability  or  Prosecution  and  Punish- 
ment for  the  Wrong.  -It  frequently  occurs  that  the  wrong- 
doer is  prosecuted,  or  liable  to  prosecution  and  punishment  for 
the  offense  to  the  public,  as  well  as  civilly  for  the  injury  done 
thereby  to  an  individual.  The  principles  of  the  common  law 
prevented  a  recoverj'  in  a  civil  suit  in  such  cases,  or  at  least 
imtil  the  wrongdoer  was  criminally  prosecuted.^  But  such  is 
no  longer  the  case ;  and  although  the  defendant  may  have  been 
prosecuted  and  punished  for  the  public  offense,  it  will  not  even 
prevent  the  recovery  of  exemplary  damages.     Nor  is  the  right 

acts  of  the  steward,  committed  without  the  authority  or  approval  of  the 
defendant. 

The  questions  decided  by  the  court  were  never  raised,  or  argued  by  counsel 
in  either  court.  The  whole  opinion  is  dictum.  They  cite  the  Goddard  case, 
and  base  their  opinion  upon  it. 

Railways  are  held  to  the  highest  degree  of  care  of  which  human  foresight 
is  capable;  that  their  track,  and  machinery,  and  trains  shaU  be  safe  and  road- 
worthy  ;  but  they  are  not  insurers  of  safety  of  their  passengers  against  unavoid- 
able casualties,  or  the  acts  of  God.  In  like  manner  they  undoubtedly  ought 
to  be  held  to  the  liighest  degree  of  care  in  the  selection  of  sober,  peaceable 
and  gentlemanly  employes  who  shall  have  charge  of  their  passengers.  If  a 
single  i-ail  out  of  a  hundred  ndles  of  new  iron  rails,  should  break  by  reason 
of  a  latent  defect,  no  one  would  think  of  holding  the  railway  responsible  (if 
this  was  the  only  fault)  for  the  death  of  a  passenger  caused  thereby.  Until 
the  doctrine  of  '  total  depravity '  shall  be  overthrown,  it  will  be  easier  to  find 
absolutely  perfect  iron  rails  enough  to  span  the  continent,  than  to  find  one 
conductor  or  brakeman  whose  Christian  meekness  shall  always  be  adequate  to 
live  peaceably  ^vith  the  average  American    'bummer.' 

But,  conceding  that  the  employe  is  wholly  at  fault  and,  without  provoca- 
tion, is  guilty  of  a  mahcious  assault,  or  wantonly  iU  treats  a  passenger,  ought 
the  company  to  be  hable  beyond  actual  damages,  unless  the  company  has 
been  guilty  of  some  neglect  in  the  employment  of  the  servant,  or  authorized, 
approved,  or  ratified  the  act?    Both  authority  and  reason  answer  no." 

»2Gr.  Ev.,  §267. 

3  Hill,  on  Torts,  59  and  61. 


106  THE  LAW  OF  DAMAGES. 

Criminal  Liability,  Prosecution  and  Punishment. 

to  recover  such  damages  prevented  by  the  constitutional  pro- 
vision which  prohibits  more  than  one  punishment  for  the 
same  offense. 

A  leading  case  bearing  on  this  question,  is  that  of  Childs  v. 
Drake^  in  which  the  court  say:  "Every  recovery  for  a  personal 
injury,  with  or  without  vindictive  damages,  operates  in  some 
degree  as  a  punishment,  but  it  is  a  punishment  which  results 
from  the  redress  of  a  private  wrong,  and  does  not,  therefore, 
violate  either  the  meaning  or  spirit  of  the  constitution.  *  * 
The  damages  are  allowed  as  compensation  for  the  loss  sus- 
tained, but  the  jury  are  permitted  to  give  exemplary  damages 
on  account  of  the  nature  of  the  injury.  It  is,  therefore,  the 
increase  of  the  damages  resulting  from  the  character  of  the 
defendant's  conduct,  that  is  denominated  punitive  or  vindic- 
tive damages."^ 

So,  in  the  Court  of  Appeals  of  New  York,  in  an  action  for 
assault  and  battery,  the  court  remarked:  "In  vindictive 
actions,  (and  this  is  agreed  to  come  within  that  class,)  jurors 
are  always  authorized  to  give  vindictive  damages  when  the 
injury  is  attended  with  circumstances  of  aggravation,  and  the 
rule  is  laid  down  without  the  qualification  that  we  are  to 
regard  either  the  probable  or  the  actual  punishment  of  the 
defendant  by  indictment  and  conviction  at  the  suit  of  the  peo- 
ple. We  concede  that  smart  inoiiey  allowed  by  a  jury,  and 
fines  imposed  at  the  suit  of  the  people,  depend  on  the  same 
principle.  Both  are  penal  and  intended  to  deter  others  from 
the  commission  of  like  crimes.  The  former  becomes  inciden- 
tally compensatory  for  damages,  and  at  the  same  time  answers 
the  purpose  of  punishment."^  The  same  doctrines  have  been 
held  in  California,"  Iowa'  and  other  states.' 

4  2  Met.  (Ky.).  14G. 

s  Cook  V.  Ellis,  6  Hill,  466. 

«  Wilson  V.  Middleton,  2  Cal.,  54. 

7  Hendrickson  v.  Kingsbury,  21  Iowa,  379;  Garland  v.  Wliolehain,  28  Id., 
185. 

8  Corwin  v.  Walton,  18  Mo.,  71;  Cole  v.  Tucker,  6  Tex.,  266. 


EXEMPLARY  DAMAGES.  107 

Criminal  Prosecution— Mitigation— Contrary  Doctrine. 

§90.    Criminal  Prosecution,  etc.,  in  ^litigation. — In 

some  of  the  states  evidence  of  a  conviction  and  punishment 
for  the  same  offense  for  which  damages  are  claimed  in  the 
civil  suit,  may  be  given  in  mitigation  of  exemplary  damages. 
Thus,  in  North  Carolina,  evidence  of  conviction  for  the  crime 
and  payment  of  a  fine  may  be  given  in  mitigation  of  exem- 
plary damages  in  an  action  for  the  injury,  but  it  does  not  bar 
the  right  of  a  civil  action,  or  the  claim  for  punitive  damages 
altogether,  as  a  matter  of  law.'  And  this  doctrine  is  also  held 
in  Pennsylvania;'  and  should  be  sustained  as  founded  in  prin- 
ciples of  justice  and  in  common  sense. 

§  91.  Contrary  Doctrine.— A  contrary  doctrine  is,  how- 
ever, held,  or  to  be  inferred,  from  the  decisions  in  some  of  the 
states ;''  and  in  a  recent  case  in  Vermont,  it  is  distinctly  repu- 
diated.* In  Massachusetts  and  Indiana,  the  right  to  exem- 
plary damages  in  such  cases  is  denied,  and  it  is  held,  that  to 
allow  damages  as  a  punishment  to  the  offender,  where  he 
might  be  prosecuted  for  the  offense  as  a  crime,  would  sui)ject 
him  to  a  double  punishment  for  the  same  offense;  and  in  such 
cases,  therefore,  punitive  damages  cannot  be  recovered.* 
Nemo  debet  his  vexari  jpro  eadetn  causa.  But  this,  as  we 
have  seen,  is  not  the  general  rule. 


'  Smithwith  v.  "Ward,  7  Jones,  (N.  C.)  L.,  64;  Johnston  v.  Crawford, 
Phelps  (N.C.)L.,  .342. 

^  Porter  V.  Sieler,  23  Pa.  St.,  424. 

3  Roberts  v.  Mason.  10  Ohio  St.,  277;  Corwin  v.  Walton.  18  Mo.,  71;  Cook 
V.  Ellis,  6  HiU,  466;  Klopfer  v.  Bromme,  28  Wis.,  372;  Hendrickson  v.  Kings- 
bury, 21  Iowa,  379;  Garland  v.  Wholeham,  26  Id.,  185;  Cole  v.  Tucker,  6 
Texas,  266. 

*  Hadley  v.  Watson.  45  Vt.,  289  (1873),  in  wliich  the  court  held,  in  an 
action  for  an  assault  and  battery,  that  a  conviction  and  fine  for  the  offense, 
in  a  criminal  proceeding,  was  neither  a  bar  nor  matter  in  mitigation  of 
exemplary  damages. 

s  Austin  V.  Wilson,  4  Cush.,  273;  Tabor  v.  Huston.  5  Ind.,  322;  Butler  v. 
Mercer,  14  Id..  479;  Nassaman  v.  Rickert,  18  Id.,  350;  Humphreys  v.  John- 
sons, 20  Id.,  190. 


108  THE  LAW  OF  DAMAGES. 

Exemplary  Damages  Refused— When  Principal  not  Liable. 

§  92.  Where  Exemplary  Damages  have  been 
Refused. — The  consideration  of  this  subject  would  hardly  be 
complete  without  some  reference  to  cases  where  exemplary 
damages  have  been  denied  by  the  courts. 

It  must  be  apparent  that  there  is  a  large  class  of  cases  that 
lie  close  upon  the  border  line  of  the  rule  which  allows  or 
excludes  such  damages;  and  many  times  it  is  difficult  to 
determine,  from  the  facts  of  the  case,  even  where  the  rule  of 
exemplary  damages  is  recognized,  whether  or  not  the  case  is 
one  to  which  it  should  be  applied.  And  especially  is  this  true 
in  many  cases  of  negligence,  where  it  tarns  upon  the  question 
whether  or  not  there  is  that  gross  negligence  which,  under  the 
rule,  holds  a  party  to  exemplary  damages. 

Thus,  it  has  been  held,  that  in  cases  of  negligence  unaccom- 
panied by  willful  intent  and  malice,  the  award  of  STnart  irioney 
should  not  be  allowed.* 

§  93.  The  Principal:  When  not  Liable  to  Exemplary 
Damages. — As  we  have  seen,  the  principal  is  not  liable 
to  exemplary  damages  for  the  negligence  of  his  servant  or 
agent,  unless  there  was  express  or  implied  authority  of  the 
principal  for  the  negligence,  or  an  approval  or  indorsement  of 
the  same  by  the  principal.' 

So,  it  has  been  held  that  a  plaintiff  cannot  have  exemplary 
damages  in  an  action  for  a  nuisance,  if  the  defendant  exercised 


« Moody  V.  McDonald,  4  Cal.,  297;  St.  Peter's  Church  v.  Beach,  26  Conn., 
355;  WiUiams  v.  Real,  20  111.,  147;  Allison  v.  Chandler,  11  Mich.,  542;  Goetz 
V.  Ambs,  27  Mo.,  28.    See,  also,  ante,  §  79. 

7  Wardrobe  v.  Stage  Co.,  7  Cal.,  118;  Kentucky,  etc.,  R.  Co.,  v.  Dills,  4 
Bush  (Ky.),  593;  Hagan  v.  Providence,  etc.,  R.  Co.,  3  R.  I.,  88;  Milwaukee, 
etc.,  R.  Co.  V.  Finney,  10  Wis.,  388;  Chicago,  etc.,  R.  Co.  v.  McKean,  40  111., 
218.  See,  also,  ante,  §§  85,  86.  So,  vindictive  damages  will  not  be  awarded 
against  the  master  of  a  vessel  for  whipping  a  seaman,  unless  the  punish- 
ment has  been  wantonly  inflicted  by  the  master,  with  the.  view  of  the  dis- 
grace and  mortification  of  the  libelant,  and  not  for  the  enforcement  of 
discipline.    Gould  v.  Christianson,  1  Blatch.  &  How.  (U.  §.  C.  C),  507. 


EXEMPLARY  DAMAGES.  109 

When  Principal  not  Liable. 

due  care  and  prudence  himself,  and  the  damage  occurred  by 
the  neglect  of  his  workman  to  follow  directions/ 

So,  where  a  party  attempts  by  force,  to  take  property  from 
one  who  has  acquired  peaceable  possession  of  the  same,  and 
the  party  resists  such  efltbrt,  the  latter  should  not  be  punished 
by  exemplary  damages,  unless  he  was  guilty  of  excess,  and 
acted  from  motives  of  malice." 

So,  in  an  action  for  damages  caused  by  a  collision,  whereby 
the  plaintiff  lost  a  foot,  and  a  horse  and  truck;  the  court  held, 
that  as  the  injury  was  not  willful,  compensation  was  all  that 
the  plaintiff  could  claim,  and  that  it  was  not  a  proper  case  for 
vindictive  damages.' 

And  where  execution  was  issued  on  a  void  judgment,  the 
party  in  whose  favor  it  was  issued  not  suspecting  its  invalidity, 
and  acting  on  the  advice  of  counsel,  caused  the  seizure  of 
property  under  it,  in  the  ordinary  manner;  it  was  held,  that 
as  there  was  an  absence  of  any  apparent  malice,  a  refusal  to 
allow  exemplary  damages  was  proper.'' 

So,  a  sheriff  or  constable  who  is  not  guilty  of  a  gross  and 
willful  neglect  in  not  serving  process,  but  acts  in  good  faith, 
though  erroneously,  is  only  liable  for  the  actual  damage  which 
a  party  sustains  by  reason  of  his  neglect.' 

And  where  a  person  built  a  house  on  the  land  of  another, 
supposing  it  to  be  his  own,  and  so  near  the  house  of  the 
owner  as  to  darken  it  and  otherwise  greatly  impair  its  value; 
it  was  held,  in  an  action  therefor,  that  the  jury  should  be 
confined  to  the  actual  pecuniary  injury  and  could  not  give 
exemplary  damages.* 

8  Morford  v.  Woodworth,  7  Ind.,  83. 

9  Barnes' V.  Martin,  15  Wis.,  240. 

'  Heil  V.  Glanding,  42  Pa.  St.,  493. 

^  Selden  v.  Cushman,  20  Cal.,  56. 

3  Blodgett  V.  Brattleboro',  30  Vt.,  579.  See,  also,  Big^s  v.  D'Aquin,  13 
La.  An.,  21 ;  Carter  v.  Tufts,  15  Id.,  16;  Beveridge  v.  Welch,  7  Wis.,  465.  See, 
also.  Snow  v.  Grace,  25  Ark.,  570. 

t  Hayes  v.  Askew,  7  Jones  (N.  C.)  L.,  272. 


110  THE  LAW  OF  DAMAGES. 


Breach  of  Promise  of  Marriage. 


So,  in  actions  for  false  imprisonment,  exemplar}^  damages 
can  only  be  given  where  it  appears  that  the  wrong  done,  of 
which  the  plaintiff  complains,  was  done  with  evil  intention  or 
bad  motives." 

So,  where  one  disobeys  an  injunction  order,  acting  lona 
fide,  under  the  advice  of  counsel,  punitive  damages  should  not 
be  awarded." 

So,  they  should  not  be  allowed  in  an  action  for  the  illegal 
seizure  and  asportation  of  goods,  when  there  is  no  evidence  of 
wanton  or  malicious  wrong  on  the  part  of  the  defendant/ 
And,  where  it  appeared,  in  an  action  for  trespass  upon  lands, 
that  the  defendant  had  accepted,  by  letter,  an  offer  for  the 
sale  of  the  lands,  which  had  been  received  by  mail,  but  that 
owing  to  the  unavoidable  detention  of  the  mails,  the  letter  of 
acceptance  was  not  received  by  the  vendor,  until  the  lands  were 
sold  to  a  third  person,  and  the  acts  of  trespass  were  committed 
after  the  mailing  of  the  letter  of  acceptance,  and  before  the 
defendant  had  received  notice  of  the  sale  to  the  third  party, 
it  was  held,  that  while  these  facts  constituted  no  defense  to 
an  action  for  single  damages,  yet  if  the  defendant  acted  in 
good  faith  and  in  the  belief  that  the  offer  would  secure  him 
the  legal  title  to  the  land,  the  case  was  not  within  the  puni- 
tive operation  of  the  statute,  awarding  treble  damages  for 
willful  trespass  on  lands.* 

§  94.    Breach  of  Promise  of  Marriage.— There  is  one 

exception,  at  least  generally  recognized  to  the  doctrine,  that  in 
actions   for   breaches   of   contract,   nothing   can    be   claimed 


5  McCall  V.  McDowell,  1  Abb.  (U.  S.),  212. 

6  Erie  R.  Co.  V.  Ramsey,  3  Lans.  (N.  Y.),  178  (1872). 

7  Wanamaker  v.  Bowes,  36  Md.,  42  (1873);  Engle  v.  Jones,  51  Mo.,  316 
(1873). 

8  Wallace  v.  Finch,  24  Mich.,  255,  in  which  the  court  held,  that  the  penal 
application  of  the  statute  should  be  confined  to  cases  marked  by  wantonness, 
willfulness,  or  evil  design,  such  as  to  remove  them  somewhat  nearer  the 
domain  of  crime,  than  common  civil  trespasses. 


EXEMPLARY  DAMAGES.  Ill 

Breach  of  Promise  of  Maniage. 

beyond  actual  damages — or,  in  other  words,  that  exemplary 
damages  cannot  be  claimed  in  actions  ex  contracUi.  And  this 
occurs  in  case  of  a  breach  of  contract  to  marry. 

In  this  action  exemplary  damages  have  always  been  held 
proper,  but  this  was  considered  an  exception  to  the  general 
rule. 

The  damages  in  this  action  rest  in  the  sound  discretion  of 
the  jury,  under  the  circumstances  of  each  particular  case;  and 
they  can  be  measured  by  no  known  standard.' 

9  But  this,  as  we  have  seen,  is  not  irreconcileable  with  the  theory  of  com- 
pensation only,  as  maintained  by  its  advocates.  See,  ante,  §  72,  and^^os^, 
Chap.  17.  But  see,  also.  Southard  v.  Rexford,  6  Cow.,  254;  Coryel  v.  Col- 
baugh.  Coxe  (N.  J.),  77;  Stout  v.  Prall,Id.,  79;  Dinslow  v.  Van  Horn,  16 
la.,  476;  Berry  v.  Da  Costa,  1  H.  &  R.,  291;  1  L.  R.,  C.  P.,  331;  12  Jur. 
N.  S.,  588;  35  L.  J.,  C.  P.,  191;  14  W.  R.,  279;  Smith  v.  Woodbine,  1  C.B., 
N.  S..  660. 


112  THE  LAW  OF  DAMAGES. 


Aggravating  Circumstances  on  Part  of  Plaintiff. 


CHAPTER  YII. 


MITIGATION  OF  DAMAGES. 

Section  97.    Aggravating  Circumstances  on  the  part  of  the  Plaintiff. 

98.  Libel  and  Slander. 

99.  General  Suspicions. 

100.    General   Bad   Character  of  the  Plaintiff— "When   it   May  be 
Shown  in  Mitigation. 

102.  Defendant  Allowed  to  Rebut  the  Presumption  of  Malice. 

103.  Criminal  Conversation— Mitigation, 

104.  Seduction. 

105.  What  May  be  Shown  in  Mitigation. 

106.  "What  Cannot  be  Shown. 

107.  Breach  of  Promise  of  Marriage. 

108.  "What  May  be  Shown  in  Mitigation. 

109.  False  Imprisonment— Mitigation. 

110.  Mitigation  in  Cases  of  Conversion  and  Trespass. 
112.  Good  or  Bad  Faith  as  Affecting. 

114.  Trespass  and  Trover— Distinction,  as  to  Measure  of  Damages. 

115.  Personal  Injuries— Assault  and  Battery. 

120.  Pecuniary  Circumstances  of  the  Defendant. 

121.  Bad  Character  of  the  Plaintiff— No  Mitigation. 

122.  Indictment,  Conviction  or  Fine  for  the  Offense. 

124.  Malicious  Prosecution. 

125.  Moral  Guilt  as  Affecting  Damages. 

§  97.  Aggravating  Circumstances  on  the  part  of 
the  Plaintiff. — Our  seventh  rule,  in  the  introductory  chapter/ 
relates  to  the  mitigation  of  damages. 

»  Ante,  §  32.  The  subject  of  mitigation  will  be  hereafter  fully  considered 
in  connection  with  our  treatment  of  damages  in  cases  of  vaiious  torts. 


MITIGATION  OF  DAMAGES.  113 


Libel  and  Slander. 


The  law  views  the  imperfection  of  human  nature  with  such 
tender  regard  that,  in  an  action  against  a  tortfeasor  for  an 
injury,  it  permits  him  to  show,  in  mitigation  of  damages,  any- 
aggravating  circumstances  on  the  part  of  the  plaintiff  or 
injured  party,  and  constituting  a  part  of  the  res  gestcB,  tend- 
ing to  provoke  the  defendant  to  the  commission  of  the  wrong. 
And  the  defendant  may  always  be  permitted  to  show  that  the 
wrong  was  done  without  malice. 

§  98.  Libel  and  Slander.— Thus,  in  an  action  for  libel, 
the  defendant  may  show,  in  mitigation  of  damages,  that 
recently,  before  the  publication  of  the  libel,  the  plaintiff  had 
also  published  one  on  the  defendant.^ 

And  it  may  be  shown  in  mitigation  of  damages,  in  an  action 
for  slander,  that  the  plaintiff  provoked  the  anger  which 
resulted  in  the  use  of  the  slanderous  words,  or  the  publication 
of  the  libel.' 

So  the  defendant  may  show  in  mitigation  of  damages,  that 
he  copied  the  libelous  matter  from  another  newspaper,  and 
omitted  several  passages  contained  in  that  paper,  which 
reflected  on  the  character  of  the  plaintiff.* 

And  it  may  be  said  generally,  that  the  fact,  that  slanderous 
words  were  spoken  in  the  heat  of  passion  or  under  excitement, 
may  properly  be  shown  in  mitigation  of  damages,  but  not  in 
bar  of  an  action  for  such  slanderous  words.* 


'  Watts  V.  Fraser,  7  Car.  &  P.,  369;  Child  v.  Homer,  13  Pick.,  503. 

3  Freeman  v.  Tinsley,  50  111.,  497.  See  also,  Richardson  v.  Northrup,  56 
Barb.  (N.  Y.),  105;  Frazer  v.  Berkley,  7  C.  &  P.,  623.  In  many  cases, 
under  the  modem  practice,  these  matters  of  mitigation  could  be  made  the 
subject  of  a  counter-claim.  Richardson  v.  Northrup,  56  Barb.  (N.  Y.),  105, 
(1867).  See  also, "Watts  v.  Fraser,  7  A.  «fe  E.,  223;  1  M.  &  Rob.,  449;  7  C.  & 
P.,  369;  Moore  v.  Oastler,  1  M.  &  Rob.,  451;  Duncombe  v.  Daniell,  2  Jur. 
(Q.  B.),  32;  Tarpley  v.  Blably,  7  C.  &  P.,  395;  2  Bing.,  437;  2  Scott,  642; 
Hodges,  414. 

4  Creevey  v.  Carr,  7  C.  &  P.,  64.    See  also,  Davis  v.  Catbush,  1  F.  &  F.,  487. 
sMousler  v.   Harding,  33  Ind.,  176.  (1870).    And  aggravating  circum- 
stances and  the  heat  of  passion  of  the  speaker,  although  not  a  defense  to  an 


114  THE  LAW  OF  DAMAGES. 


General  Suspicions. 


So  it  may  be  shown  in  mitigation,  that  from  the  conduct  of 
the  plaintiff  the  defendant  believed,  and  that  it  was  reasonable 
to  believe,  that  the  charge  was  true;  or  that  the  charge  was 
made  under  a  mistake  and  was  retracted  in  a  public  and 
proper  manner/ 

§  99.  General  Suspicions.— It  has  been  frequently, 
though  not  universally,  held  that  the  defendant  in  an  action 
for  slander  may  show,  in  mitigation  of  damages,  general 
suspicions  and  common  reports  of  the  guilt  of  the  plaintiff 
of  the  crime  charged  by  the  defendant,  and  for  which  the 
action  is  brought.' 


action  for  slander,  may  be  considered  in  mitigation  of  damages;  and  whether 
exemplary  damages  should  be  allowed,  is  a  question  for  the  jury  under  all  the 
circumstances  of  the  case.  Miles  v.  Harrington,  8  Kans.,  425,  (1871);  Jarni- 
gan  V.  Fleming,  43  Miss.,  710.  See  also,  in  support  of  the  text,  Hotchkiss  v. 
Lathrop,  1  Johns.,  286;  Beardsley  v.  MajTiard,  4  Wend.,  336;  7  Id.,  560; 
Gould  V.  Wead,  12  Id.,  12;  Dolevin  v.  Wddcr.  34  How.  Pr.,  489;  Lamed  v. 
Buffington,  3  Mass.,  546;  McClintock  v.  Crick,  4  la.,  453;  Ranger  v.  Good- 
rich, 17  Wis.,  78;  Brown  v.  Brooks,  3  Ind.,  518;  Powers  v.  Presgroves,  38 
Miss.,  227;  Duncan  v.  Brown,  15  B.  Men.,  186;  Steever  v.  Buhler,  1  Miles, 
146;  Else  V.  Ferris,  Anthony  (N.  P.).  23;  Wakeley  v.  Johnson,  Ry.  &  M., 
422;  Watts  v.  Fraser,  34  Eng.  C.  L.,  82;  Thomas  v.  Dunnaway,  30  111.,  373; 
Botolor  V.  Bell,  1  Md.,  173;  Long  v.  Eakle,  4  Id.,  454;  Davis  v.  Griffith,  4 
GUI  &  J.,  342. 

7  Lamed  V.  Buffington,  3  Mass.,  546;  Mapes  v.  Weeks,  4  Wend.,  663;  2 
Stark,  on  Slan.,  95;  Hotchkiss  v.  Ohphant,  2  Hill,  510. 

8  2  Stark,  on  Slan., 84  and  88,  note;  2  Gr.  on  Ev.,  §  275;Hoct  v.  Reed,  1  B. 
Mon,,  166;  Treat  v.  Browning,  4  Conn.,  408;  Walcott  v.  Hall,  6  Mass.,  514; 
Alderman  v.  French,  1  Pick.,  1;  Mullett  v.  Hulton,  4  Esp.,  248;  Bodwell  v. 
Swan,  3  Pick.,  376;  Root  v.  King,  7  Cow.,  613;  Matson  v.  Buck,  5  Id.,  499; 
McAlexander  v.  Harris,  5  Mumf.,  465;  Boice  v.  McAHster,  3  Fairf.,  310;  Ful- 
ler V.  Dean,  31  Ala.,  654;  Morris  v.  Baker,  4  Har.,  520;  Fletcher  v.  Burrows, 
lOIa.,  557;  Moyerv.  Pine,  4  Mich.,  409;  Bradley  v.  Gibson,  9  Ala.,  406; 
Sheehan  v.  CoUins,  20  111.,  325;  Walthman  v.  Weaver,  1  D.  &  R.,  10;  Nelson 
V.  Evans,  1  Dev.,  9;  Caloway  v.  Middlcton,  2  A.  K.  Marsh.,  372;  Bums  v. 
Stokes,  27  Miss.,  239;  Weatherby  v.  Marsh,  20  N.  H.,  561;  Case  v.  Marks, 

'20  Conn.,  248;  Bridgman  v.  Hopkins,  34  Vt.,  532.  But  see,  Waithman  v. 
Weever,  11  Price,  257,  note;  Bracegirdle  v.  Bailey,  1  F.  &  F.,  123;  Talbutt 
V.  Clark,  2  M.  &  Rob.,  312;  Hampton  v.  Wilson,  4  Dev.,  468;  Haskins  v. 
Lumsden,  10  Wis.,  359;  Moberly  v.  Preston,  8  Miss.,  462;  Cude  v.  Redditt, 
15  La.  An.,  492;  Dane  v.  Kenny,  5  Foster  (N.  H.),  318;  Lewis  v.  Niles,  1 


mitigatio:n'  of  damages.  115 

General  Character  of  Plaintiff. 

And  it  is  proper  to  show  in  mitigation  of  damages,  any- 
thing indicating  that  the  defendant  did  not  act  wantonly  or 
under  the  influence  of  malice;  or  the  character  and  degree  of 
the  malice;  such  as  misconduct  of  the  plaintiff  giving  rise  to 
the  charge,  and  causing  it  to  be  believed  that  it  was  true;  or 
opprobrious  words  addressed  by  the  plaintiff  to  the  defendant, 
either  verbally  or  in  writing;  or  that  the  j)laintiff,  in  any 
manner,  provoked  such  anger  as  resulted  in  the  use  of  the 
slanderous  words,  or  that  they  were  spoken  in  the  heat  of 
passion  or  under  excitement.* 

So  the  extreme  youth,  or  even  partial  insanity,  of  the 
defendant  may  be  shown  in  mitigation,  not  only  as  tending 
to  show  a  want  of  malice,  but  as  lessening  the  effect  of  the 
slander.'" 

But  the  defendant  cannot  show  his  own  want  of  veracity 
for  the  purpose  of  mitigation." 

§  100.  General  Bad  Character  of  the  Plaiiititf  in 
Mitigation. — The  i3laintiff's  general  bad  character  may  also 
be  shown  in  mitigation  of  damages,  in  an  action  for  slander, 
for  the  reason  that  to  slander  one  of  bad  character  is  of  less 
damage  than  one  of  good  character;  and  it  may  be  especially 

Root,  346;  Night  v.  Foster,  39  N.  H..  576;  Woolcott  v.  HaU.  6  Mass.,  514; 
Alderman  V.  French,  1  Pick.,  1;  Walkin  v.  Hall,  Law  R.,  33  Q.  B.,  396; 
Innman  v.  Foster,  8  Wend.,  602;  Kennedy  v.  Gifford,  19  Id.,  296;  Mapes  v. 
Weeks,  4  Id.,  659;  Watson  v.  Buck.  5  Cow.,  499;  Fisher  v.  Pattison,  14  Ohio, 
418;  Scott  V.  McKinish,  15  Ala.,  662;  Haskins  v.  Lumsden,  10  Wis.,  359; 
Beardsley  v.  Bridgman,  17  la.,  290;  Regnier  v.  Cabot,  2  GiLm.,  34.  See  also, 
Townsend  on  Slan.  and  Libel,  §  410,  et  seq;  Wilson  v.  Fitch,  41  Cal.,  364. 

9  Jlousler  V.Harding.  33  Ind.,  176  (1870);  Alpine  v.  Morton,  21  Ohio  St., 
536  (1871);  Hotchkiss  v.  Lathrop,  1  Johns..  2S6;  Child  v.  Homer,  13  Pick., 
503;  Lamed  v.  Biffington.  3  Mass.,  546;  Beardsley  v.  Maj-nard,  4  Wend., 
a36;  Miles  V.  Harrington,  8  Kan.,  425  (1871);  Go'old  v.  Wead,  12  Wend., 
12;  2  Gr.  Ev.,  §  275;  Freeman  v.  Tinsley,  50  111.,  497;  Huson  v.  Dale,  19 
Mich.,  17,  where  there  is  a  review  of  many  cases;  Reynolds  v.  Tucker,  6 
Ohio  (N.  S.),  516;  Bradley  v.  Heath,  12  Pick.,  163;  HajTvood  v.  Foster,  16 
Ohio.  88. 

'"  Dickinson  v.  Barber.  9  Mass.,  225;  2  Gr.  Ev.,  §  275. 

"  How  v.  Perr}-,  15  Pick.,  506. 


116  THE  LAW  OF  DAMAGES. 

Defendant  Allowed  to  Rebut  Presumption  of  Malice. 

shown  that  it  was  bad  in  reference  to  the  charge  that  was 
made  bj  the  defendant,  or  tliat  the  plaintiff  had  been 
suspected  of  the  crime  charged,  and  that  in  consequence 
thereof  his  relations  and  acquaintances  had  ceased  to  visit 
him.'' 

§  101.  The  same  general  principles  apply  in  mitigation  of 
damages  in  an  action  for  a  libel,  as  in  slander.  Thus  it 
may  be  shown,  in  mitigation  of  damages,  that  the  plaintiff 
was  generally  suspected  and  commonly  reputed  to  be  guilty 
of  the  particular  offense  imputed  to  him;  that  the  character 
of  the  plaintiff  was  bad;  that  the  charge  was  occasioned  by 
the  misconduct  of  the  plaintiff,  leading  to  the  belief  that  he 
was  guilty;  or  that  the  libel  was  the  result  of  a  mistake;  or 
that  it  was  received  from  a  third  person;"  or  that  it  was 
copied  from  another  paper,  and  credit  given  therefor;'*  or 
that  the  defendant  was  at  the  time  non-com.pos  meniisj^^  or 
matters  of  a  like  character. 

§  102.  The  Defendant  Allowed  to  Rebut  Presump- 
tion of  Malice. — The  defendant  is  allowed,  in  mitigation  of 
damages,  the  fullest  opportunity,  in  an  action  either  for 
slander  or  libel,  to  rebut  the  presumption  of  malice.  And 
for  this  purpose  he  may  show  the  circumstances  under  which 
the  publication  was  made,  the  source  of  his  information,  and 
the  motives  which  induced  the  publication. 

And  public  interest,  and  due  freedom  of  the  press,  demand 
that  the  conductors  of  public  journals  should  not  be  liable  for 

'=  1  Hill  on  Tort,  403;  Tovrasend  on  S.  &  L.,  §  406,  et  seq;  Earl  of  Lieces- 
ter  V.  Walton,  2  Camp.,  251;  2  Stark,  on  Slan.,  77,  88;  Walcott  v.  Hall,  6 
Mass.,  514.  But  see,  as  to  what  extent  damages  may  be  affected  in  an 
action  for  slander  by  the  good  or  bad  character  of  the  plaintiff,  Adins  v. 
Smith,  48  111.,  417  (1872). 

«  Dole  V.  Lyon,  10  Johns.,  447;  De  Crespigny  v.  Wellesby,  5  Bing.,  392. 

'*  Dickinson  v.  Barbour,  9  Mass.,  225.  But  this  would  be  no  justification. 
McDonald  v.  Woodruff,  2  Dill.,  244  (1871). 

isTobarfcv.  Tipper,  1  Camp.,  350;  Dickinson  v.  Barbour,  9  Mass.,  225. 
And  see,  Yates  v.  Reed,  4  Blackf.,  463;  Byran  v.  Jackson,  6  Humph.,  199. 


MITIGATION  OF  DAMAGES.  117 

Criminal  Conversation— Seduction. 

punitive  damages,  on  account  of  publications  made,  wliere 
thej  are  influenced  by  laudable  motives,  and  where  the  same 
is  published  after  due  inquiry  and  care  to  ascertain  the  truth 
of  the  facts  stated,  and  in  the  honest  belief  that  they  were 
true.'" 

§  103.  Criminal  Conversation— Mitigation. — The  basis 
of  this  action  is  the  loss  of  comfort,  fellowship,  society,  and 
assistance  of  tlie  wife;  and  in  such  an  action  it  is  competent  to 
show,  in  mitigation  of  damages,  any  facts  tending  to  establish 
that  the  damage  in  this  respect  is  but  little,  as  that  the 
plaintiff  and  his  wife  did  not  live  together  as  husband  and 
wife;  or  that  he  ill  treated  his  wife  before  the  criminal  inter- 
course; or  that  he  suffered  her  after  their  marriage  to  remain 
with  lier  mother  as  though  she  was  single,  and  to  continue 
theatrical  performances  in  her  maiden  name;  or  other  facts, 
tendmg  to  show  that  there  was  inharmony  between  the  parties 
and  but  a  trifling  injury  to  the  relations  of  the  plaintiff  to  his 
wife." 

So  it  has  recently  been  held  proper  to  show  the  condition 
in  life  and  pecuniary  circumstances  of  the  respective  parties, 
as  matters  properly  affecting  the  amount  of  damages.'* 

§  104.  Seduction. — The  common  law  action  of  case  for 
seduction,  is  based  upon  the  legal  fiction  of  loss  of  service  of 


'«  Wilson  V.  Fitch,  41  Cal.,  363.  See,  also,  Bennett  v.  Mathews,  64 
Barb.  (N.  Y.),  410  (1872);  Frink  v.  Justh,  14  Abb.  (N.  Y.),  Pr.  N.  S.,  107 
(1872). 

'7Calcraftv.  Earl  of  Harborough,  4  Car.  &  P.,  499;  Palmer  v.  Cook,  7 
Gray  (Mass.),  418;  Bennett  v.  Smith,  21  Barb.,  439.  See,  also,  Sanborn  v. 
NeUson,  4  N.  H.,  501;  Rea  v.  Tucker,  51  111.,  110. 

»8  Rea  V.  Tucker,  51  111.,  110  in  which  case  it  was  also  held  admissible  to 
prove,  in  mitigation  of  damages,  that  the  wife  had  been  guilty  of  adultery 
with  other  men  before  her  connection  with  the  defendant.  But  in  Con- 
necticut, it  was  held  that  the  defendant  could  not  show  his  own  poverty  in 
order  to  diminish  damages.    Case  v.  Marks,  20  Conn.,  248. 


118  THE  LAW  OF  DAMAGES. 


Wliat  Shown  in  Mitigation— What  Cannot  be  Sliown. 


the  seduced,  by  the  parent  or  master,  and  the  jury  have  a  dis- 
cretion to  award  exemplary  damages.'* 

There  is  no  right  of  action  given  to  the  parent  at  common 
law  for  seduction,  as  such,  but  the  right,  founded  on  "  loss  of 
services,"  is,  in  reality,  mainly  to  punish  the  seducer  in  dam- 
ao-es  for  the  wrono;  done,  as  well  as  to  afford  some  redress  to 
the  parent  for  tlie  dishonor  and  distress  wliich  follows  it.^" 

§  105.    What  May  be  Shown  in  Mitigation.— But,  in 

an  action  for  seduction,  the  defendant  may  show,  in  mitigation, 
that  the  daughter  had  had  intercourse  with  other  men." 

And  evidence  of  careless  indiiference  on  the  part  of  the 
parent,  in  affording  opportunities  for  criminal  intercourse  with 
the  daughter,"  or  any  facts  bearing  on  the  relations  of  the 
persons  whose  conduct  is  in  question,  and  which  constitute  a 
part  of  the  res  gestm,  may  be  shown  in  mitigation."  And  in 
Iowa,  under  a  statute  providing  for  an  action  by  the  female 
for  lier  own  seduction,  it  was  held,  that  the  bad  character  of 
the  female  before  the  seduction  may  be  shown  in  mitigation 
but  not  as  a  complete  defense." 

§  106.     AVhat   Cannot  be  Shown  in   Mitigation.— 

But  it  is  held  incompetent  in  an  action  by  the  parent,  to 
show  the  parent's  insensibility  to  the  daughter's  disgrace;" 
or  that  the  female  consented  willingly  to  the  seduction;  or 
even  that  she  in  fact  seduced  the  defendant;  her  consent  not 
depriving  the  parent  of  a  right  to  damages.^" 

•9  Ball  V.  Bmce,  21  111.,  161;  Bartley  v.  Riclitmyer,  4  Cow.,  38;  Stout  v. 
Prall,  Coxe,  79. 

=°  Ellington  v.  Ellington,  47  Miss.,  329. 

^'  Verry  v.  Watkins,  7  C  &  P.,  308.  Also,  general  bad  character  for 
chastity  may  be  shown.    Carder  v.  Fonhand,  1  Mo.,  704. 

«  Zerfing  v.  Mowrer,  2  G.  Greene  (la.),  520. 

=3Threadgood  v.  Litogot,  22  Mich.,  271  (1871). 

=4  Smith  V.  Wnbum,  17  la.,  30. 

=s  Bolton  V.  Miller,  6  lud.,  262. 

=6  McAuley  v.  Birkhead,  13  Ired.  (N.  C),  S.  28. 


MITIGATION  OF  DAMAGES.  119 

Breach  of  Promise  of  Marriage -What  may  he  Shown  in  Mitigation. 

But  these  circumstances  it  seems  to  me  would  be  proper  in 
mitigation,  where  the  action  is  brouii-ht  by  the  seduced  party. 
It  has  also  been  held  that  the  defendant's  liability  to  a  crim- 
inal prosecution  for  the  seduction,  and  for  procuring  an  abor- 
tion upon  the  female  seducsd,  is  not  proper  matter  to  be  con- 
sidered in  mitigation  of  even  exemplary  damages." 

§  107.  Breach  of  Promise  of  M.irri.age— We  have  seen 
that  in  this  action,  although  for  a  breach  of  contract,  the  meas- 
ure of  damages  has  never  been  limited  to  those  rules  govern- 
ing actions  on  contracts  generally.  The  claim  is  usually 
based  upon  injury  to  the  feelings  and  affections;  for  wounded 
pride,  as  well  as  for  pecuniary  loss,  caused  by  the  breach;  and 
no  precise  rule  for  the  measure  of  the  loss  can  be  given  in 
such  a  case.'^* 

§  108.  What  may  be  Shown  in  ^litigation .— But  cir- 
cumstances, such  for  instance  as  the  Kmited  time  during  which 
the  engagement  has  existed,'''  and  want  of  virtue  and  sobriety 
of  the  seduced  and  her  dissolute  conduct  after  the  engage- 
ment, or  before,  if  unknown  to  the  defendant  at  the  time," 
may  be  shown  in  mitigation  of  damages.  So,  it  is  competent 
to  show  the  fact  that  the  plaintiff  had  an  illegitimate  child,  if 
unknown  to  the  defendant  at  the  time  of  the  promise;"  or 
that  she  had  connection  with  other  men,  before  or  after  the 
promise,  and  this  notwithstanding  the  engagement  was  formed 
or  continued  after  knowledge  of  the  fact  by  the  defendant;  on 

=7  Klopfer  V.  Bromme,  26  Wis.,  372. 

=3  Thorn  V.  Knapp,  42  N.  Y.,  474.    See,  j^ost,  §  534. 

=9  Grant  v.  Wiley,  101  Mass.,  356. 

3°  Boynton  v.  Kellogg,  3  Mass.,  189.  But  see,  Johnson  v.  Smith.  3  Pitts. 
(Pa.),  184,  where  it  is  held,  that  improprieties  and  lewdness  between  the 
parties  betrothed,  should  not  be  received.eitherin  aggravation  or  mitigation 
of  damages.    See  also.  Miller  v.  Hays,  34  la.,  496. 

3t  Denslow  v.  Van  Horn,  16  la.,  476;  Johnson  v.  Calkins,  1  Johns.  Cases, 
116;  Millard  v.  Stone,  7  Cow.,  22;  Palmer  v.  Anckews,  7  Wend.,  14:3;  Foulks 
V.  Selway,  3  Esp.,  236;  Bradly  v.  Mortlock,  1  Holt,  N.  P.,  151;  3  Eng., 
C.  L.,  59. 


120  THE  LAW  OF  DAMAGES. 

False  Imprisoninent— Mitigation. 

the  ground  that  an  unchaste  woman  cannot  be  injured,  by  a 
breach  of  promise  of  marriage,  to  the  same  extent  as  a  vir- 
tuous one.^'' 

So,  in  this  action,  it  may  be  shown  in  mitigation  of  damages, 
that  tlie  defendant  was  afflicted  with  an  incurable  disease;" 
or,  that  the  breach  proceeded  from  no  change  of  feelings  on 
the  part  of  the  defendant,  but  was  the  result  of  a  deference 
to  the  feelings  and  wishes  of  the  defendant's  mother,  a  person 
of  infirm  health.^^ 

But,  it  is  evident  that  these  various  matters  can  only  go  in 
mitigation  of  exemplary  damages,  and  not  of  such  actual 
damages  as  may  be  shown,  and  which  we  shall  hereafter  refer 
to  as  recoverable  in  such  cases. 

§  109.   False  Imprisonment— Mitigcation.— In  an  action 

for  false  imprisonment,  in  which  the  defendant  was  charged 
with  illegally  procuring  the  plaintiff's  arrest  and  imprison- 
ment for  discouraging  enlistments,  on  an  affidavit  to  that 
effect  made  before  a  federal  officer,  the  defendant  was  allowed 
to  show  in  mitigation  of  damages,  that  the  plaintiff  had  in 
fact  discouraged  enlistments.^^ 

So,  in  an  action  for  false  imprisonment,  the  inexperience  of 
the  attorney  who  advised  and  instituted  the  proceedings, 
while  it  does  not  justify  the  arrest,  may  be  given  in  evidence 
in  mitio^ation  of  damao:es.^° 

And   seditious  language,  of  a  gross  and  violent  character, 
and  which  influenced  the  defendant  to  order  the  arrest  corn- 
s' Burnett  V.  Simpkins,  24  111.,  264. 

33  Sprague  v.  Craig,  51  111.,  288. 

34  Johnson  v.  Jenkins,  24  N.  Y.,  252.  See  also.,  Sprague  v.  Craig,  51 
111.,  288. 

3s  Roth  V.  Smith,  54  111.,  431.  And  the  defendant  may  show  that  he  was 
persuaded  by  others  to  make  the  affidavit  upon  wliich  the  arrest  was  made, 
as  indicating  the  animus  with  which  he  acted,  and  to  avoid  or  mitigate  vin- 
dictive damages.    41  lU.,  314. 

36  Mortimer  v.  Thomas,  23  La.  An.,  165. 


MITIGATION  OF  DAMAGES.  121 

Cases  of  Conversion  and  Trespass. 

plained  of,  was  allowed  as  proper  evidence  in  mitigation  of 
damages." 

But  where  a  party  was  arrested  on  suspicion,  and  an  action 
for  false  imprisonment  therefor  was  brought,  it  was  held,  that 
the  bad  character  of  the  plaintiff  could  not  be  shown  in  mit- 
igation of  damages.'^ 

This  doctrine  should,  however,  be  limited  to  the  actual 
damages.  Strong  and  general  suspicion  ought  to  go  in  miti- 
gation of  exemplary  damages.^^ 

§  110.  Mitigation  in  Cases  of  Conversion  and  Tres- 
pass-— In  an  action  for  the  conversion  of  property,  the  fact 
that  the  property  has  been  returned  to  the  plaintiff,  may 
always  be  shown  in  mitigation  of  damages.  And,  generally, 
where  there  is  a  wrongful  taking,  and  the  jDroperty  has  been 
re-delivered  to  the  owner  or  party  entitled  to  possession,  or  he 
lias  become  re-possessed  of  the  same,  the  measure  of  damages 
is  the  expenses  necessarily  incurred  by  reason  of  the  tort;  the 
value  of  the  time  required  to  recover  it;  the  value  of  the 
use  of  the  property,  and  the  amount  of  the  injury  thereto,  if 
any." 

And  in  such  actions  evidence,  tending  to  repel  the  presump- 
tion of  malice  in  the  taking  or  conversion,  is  always  admissible 
in  mitigation  of  damages. 

The   rule  in   mitigation   of  damages,  should,  on  general 


37  McCaU  V.  McDoweU,  1  Abb.  (U.  S.),  212. 

38  Russell  V.  Huster,  8  Watts  &  Sarg.,  308;  Jones  v.  Stevens,  11  Price,  283. 

39  See,  ante,  §  99,  et  seq. 

*°  Tamoaco  v.  Simpson,  19  C.  B.  (N.  S.),  453.  See  also,  opinion  by  Strong, 
J.,  in  Mclnroy  v.  Dyer,  47  Pa.  St.,  118;  Bac.  Ab.,  628;  Vosburgli  v.  Welch, 
11  Johns.,  175;  Gibbs  v.  Chase,  10  Mass.,  126;  Harmon  v.  Wiley,  17  Wend., 
91;  Hibbard  v.  Stewart,  1  Hnt.,  207;  Pratt  v.  Battles,  28  Vt.,  685;  Hm-burt 
V.  Green,  41  Vt.,  490;  Criner  v.  Pike,  2  Head.  (Tenn.),  398;  Outcault  v.  Bur- 
ling, 25  N.  J.  L.,  443.  See  also,  Keene  v.  Dilke,  4  Exch.,  388;  18  L.  J. 
Exch.,  440;  Pickering  v.  Truste,  7  T.  R.,  53;  Butler  v.  Mehrling,  15  111.,  488; 
Odel  V.  HaU,  25  Bl.,  204. 


123  THE  LAW  OF  DAMAGES. 

Go^l  or  Bad  Faith  as  Affecting. 

principles,  be  the  same,  whether  the  action  be  for  the  wrong- 
ful conversion  or  for  the  wronijful  takinj;." 

§  111.  And  where  property  wrongfully  taken  by  the  tres- 
passer, has  been  appropriated  to  the  owner's  use  hij  his 
consent,  ex-press  or  implied,  it  goes  in  mitigation;  and  such 
consent  is  always  implied  where  the  property  has  been  seized 
and  sold  under  process  against  the  owner  and  in  favor  of  a 
third  party,  who  is  innocent  of  the  trespass  and  who  pur- 
chases the  property  in  good  faith." 

And  where  the  property,  though  taken  from  the  jjlaintiff 's 
possession,  did  not  belong  to  him,  and  it  went  to  the  use  of  the 
true  owner,  either  by  being  restored  to  him  in  specie  or  taken 
upon  legal  process  in  payment  of  his  debt,  the  defendant  lias 
been  allowed  to  shovv  these  facts  in  mitiijation  of  damag-es/* 

§  112.  Good  or  Bad  Faith  as  Aifectiiig— The  distinc- 
tion has  been  recognized  in  actions  of  trespass  de  bonis 
asportatis,  between  good  and  bad  faith — good  and  evil  motives 
— on  the  part  of  the  wrongdoer." 

Accordingly,  where  property  was  tortiously  taken  from  the 
possession  of  the  owner,  and  subsequently  levied  upon  in  tlie 
hands  of  the  tortfeasor  by  a  third  person,  under  a  warrant  of 
distraint  for  rent  due  from  the  owner,  it  was  held  that  these 
facts  might  be  shown  in  an  action  by  the  owner  against  the 
original  Avrongdoer,  and  that  if  the  latter  took  the  property 
under  an  honest  belief  that  he  had  title  to  it,  and  not  for  the 


4=  See,  post,  §§  840,  872,  Opinion  of  Strong,  J.,  in  Mclnroy  v.  Dyer,  47 
Pa.  St.,  121. 

43  Bates  V.  Courtright,  36  III.,  518.  See  also,  Kaley  v.  Shed,  10  Met. 
(Mass.),  317;  Stow  v.  Yarwood,  14  111.,  424.  See  also,  where  the  plaintiff 
purchases  the  property.    Mclnroy  v.  Dyer,  supra. 

44  Squire  v.  Hallenbeck,  9  Pick.,  551;  Criner  v.  Pike,  2  Head  (Tenn.),  398; 
DeWitt  V.  Morris,  13  Wend.,  496;  Pierce  v.  Benjamin,  14  Pick.,  356;  Hallett 
V.  Novion,  14  Johns.,  273. 

45  Criner  v.  Pike,  2  Head  (Tenn.),  398. 


MITIGATION  OF  DAMAGES.  123 


Good  or  Bad  Faith  as  Affecting. 


purpose  of  subjecting  it  to  the  landlord's  lien,  it  would  go  in 
mitigation  of  damao^es." 

So,  where  an  officer  had  paid  freight  on  goods  attached  by 
him  and  afterwards,  on  demand  of  a  person  who  had  a  lien  on 
them  for  advances,  refused  to  pay  the  amount  of  the  lien,  or 
to  release  the  attachment,  or  to  deliver  the  goods  to  the 
demandant,  in  an  action  by  him  against  the  sheriff  for  the 
conversion,  it  was  held,  that  the  amount  paid  by  the  defend- 
ant for  the  freight  must  be  deducted  from  the  value  of  the 
goods." 

And  in  an  action  of  trespass  vi  et  armis^  for  taking  away 
certain  property  belonging  to  the  plaintiff,  and  it  appeared 
that  the  plaintiff  had  bought  the  property  at  a  sale  made  by 
the  constable  on  an  execution  against  him,  but  which  was 
unlawfully  levied  upon,  the  measure  of  his  damages  was  held 
to  be,  not  the  value  of  the  property,  but  what  it  cost  him  to 
regain  possession  of  the  same,  what  he  had  lost  by  the  depri- 
vation of  the  same,  and  such  other  damages  as  were  commen- 
surate with  his  actual  injury." 

But  where  the  sheriff  wrongfully  attached  and  sold  goods  of 
the  plaintiff  he  was  not  permitted,  in  an  action  for  the  same, 
to  show  in  mitigation  that  he  had  voluntarily  applied  the 
proceeds  to  the  plaintiff's  indebtedness;  for  every  person  has 
a  right  to  adjust  his  own  liabilities  in  his  own  way  and  with- 
out the  unq,uthorized  interference  of  others." 

And  where  a  sale  of  goods,  was  made  by  a  debtor  in  viola- 
tion of  the  State  insolvent  laws,  and  the  goods,  while  in  the 
hands  of  the  purchaser,  were  attached  by  a  creditor  who  held 
them  till  an  assignee  was  chosen,  and  then  delivered  them  to 

4«  Higgins  V.  "Whitney,  24  Wend.,  379.  But  see,  Otis  v.  Jones,  21  Wend., 
394,  where  the  property  was  subsequently  taken  on  execution  in  favor  of  the 
wrongdoer.     See,  also,  Sherry  v.  Schuyler,  2  Hilt,  204. 

47  Clark  V.  Dearborn,  103  Mass.,  335. 

48  Mclnroy  v.  Dyer,  47  Pa.  St.,  121. 

49  McMichael  v.  Mason,  13  Pa.  St.,  214. 


124  THE  LAW  OF  DAMAGES. 

Distinction  at  Common  Law  Between  Trespass  and  Trover. 

the  assignee,  these  facts  were  allowed  to  be  shown  in  mitiga- 
tion of  damages  in  an  action  by  the  purchaser  against  the 
attaching  creditor/" 

§  113«  And  in  an  action  for  unlawfully  taking  and  carry- 
ing away  the  plaintiff's  goods,  where  it  appeared  that  the 
defendant  had  induced  the  plaintiff's  wife  to  leave  her  hus- 
band and  had  aided  her  in  clandestinely  removing  the  prop- 
erty, but  that  she  had  afterwards  returned  with  the  goods  to 
the  neighborhood  of  the  plaintiff's  residence,  and  handed  him 
the  railroad  checks  therefor,  which  he  received  and  delivered 
to  a  third  person  with  instructions  to  take  charge  of  the  prop- 
erty, it  was  held  that  there  was  sufficient  acceptance  of  the 
property  to  be  considered  in  mitigation  of  damages." 

§  114,  Distinction  at  Common  Law  between  Tres- 
pass and  Trover  in  respect  to  the  Measure  of  Dama- 
ges.— In  some  of  the  States  the  old  rule  of  law  prevails,  that 
no  malice  or  any  aggravating  circumstances  can  be  shown  in 
the  action  of  trover  for  a  conversion;  and  a  distinction  in 
this  respect  is  made  between  the  common  law  action  of  tres- 
pass and  trover.  In  the  former  action  matters  in  aggravation 
and  punitive  damages  were  held  proper,  but  in  the  latter 
these  were  not  so  held." 

Thus,  in  Yermont,  it  was  held  in  an  action  of  trover  for  a 
pair  of  oxen,  which  had  been  stolen  from  the  plaintiff  and 
were  found  in  the  defendant's  possession  in  New  York,  that 
the  expenses  incurred  by  the  plaintiff  in  regaining  possession 
of  the  cattle  by  legal  proceedings  in  IS^ew  York,  could  not  be 
included  in  damages  for  the  conversion."  But  this  is  not  the 
general  doctrine  in  this  country;  and  there  is  a  tendency  to 
allow  exemplary  damages  in  such  cases,  and  all  those  remote 

so  Leggett  V.  Baker,  13  Allen,  (Mass.),  470. 
SI  DaHy  v.  Cowley,  5  Lans.  (N.  Y.),  301. 
s»  Bacon  Abr.  Tit.  Trover  A.,  A.,  3. 
S3  Harris  v.  Eldred,  42  Vt.,  39. 


MITIGATION  OF  DAMAGES.  125 

Personal  Injuries. 

losses  which  are  proper  to  be  shown  in  cases  of  aggravated 
trespasses."  In  an  action  for  the  killing  of  a  dog,  the  defend- 
ant may  show  in  mitigation  the  worthlessness  of  the  animal." 

§  115.    Personal  Injuries— Assault  and  Battery.— 

In  actions  for  assault  and  battery,  the  regard  of  the  law  for 
the  infirmities  of  human  temper  is  particularly  manifested, 
and  it  is  proper  to  show  that  the  plaintiff  by  his  own  impru- 
dence and  folly  brought  the  injury  upon  himself. "^ 

Thus,  in  this  action  it  has  been  held,  that  the  conduct  of  the 
plaintiff  at  the  time,  being  part  of  the  res  gestw,  and  even  the 
character  of  the  plaintiff,  may  be  shown  in  mitigation  of 
damages. 

But  the  declarations  or  conduct  of  the  plaintiff  at  other  and 
former  times,  or  any  antecedent  facts,  not  constituting  part  of 
the  res  gestcB^  cannot  generally  be  shown  in  mitigation." 

Provoking  words  will  not  justify  an  assault  and  battery, 
but  they  may  be  shown  in  mitigation.'*  And,  in  an  action 
where  an  altercation  grew  out  of  a  question  of  veracity  between 
the  parties,  the  defendant  was  allowed  to  show,  in  mitigation, 
that  the  truth  of  the  matter  in  dispute  was  as  claimed  by 
him.'' 

Bat  no  provocation  will  reduce  the  damages,  in  an  action 
for  assault  and  battery,  below  the  actual  damages,  unless  it 
amounts  to  a  justification.^" 

54  See  opinion  of  Lowrie  C.  J.,  in  Forsyth  v.Wells,  41  Pa.  St.,  291;  Miller 
V.  Kelley,  69  Pa.  St.,  403;  Backenstross  v.  Stabler,  -3.3  Pa.  St.,  251.  See, 
also,  DeBost  v.  Bushford,  2  Camp.,  511;  Davis  v.  Nest,  6  Car.  &  P.,  167. 

5s  Drnilap  v.  Snyder,  17  Barb.,  (N.  Y.),  561. 

56  Frazer  v.  Berkley,  7  Car.  &  Pay.,  621;  Mosely  v.  Dunbar,  24  Wis.,  183; 
Tlirall  V.  Knapp,  17  la.,  468.     See,  also,  ante,  §  97,  et  seq. 

57  Mosely  v.  Dunbar,  24.  Wis.,  183;  Jarvis  v.  Manlove,  5  Harring.  (Del.), 
452. 

58  Keys  V.  Devlin,  3  E.  D.  S.  (N.  Y.),  C.  P.  R.,  518. 

59  Marker  v.  Miller,  9  Md.,  338. 
*o  Berchard  v.  Booth,  4  Wis.,  67. 


126  THE  LAW  OF  DAMAGES. 

Personal  Injuries. 

§  1 16.  Any  facts  and  circumstances  occurring  at  the  time 
of  the  assault,  and  connected  with  it,  tending  to  establisli  that 
the  defendant  was  provoked  or  excited  by  the  plaintiff,  or  any 
language  on  the  part  of  the  plaintiff  tending  to  fan  the  angry 
passions  of  the  defendant,  are  admissible  in  evidence  in  mitiga- 
tion of  damages;  provided,  the  provocation  occurs  at  the  time, 
or  has  been  so  recent  and  immediate  as  to  induce  a  presump- 
tion that  the  act  was  committed  under  the  immediate  influence 
of  the  passions  thus  wrongfully  excited. 

But,  where  the  offense  was  committed  so  long  after  the 
words  or  acts  of  provocation  claimed,  as  to  afford  time  for  cool- 
ness and  reflection,  or  under  circumstances  leading  to  the 
presumption  that  the  battery  was  done  for  revenge,  the  assail- 
ant stands  in  the  position  of  an  original  trespasser,  and  with- 
out provocation,  and  these  acts  cannot  be  shown  in  mitiga- 
tion.^' 

§  1 17.  In  an  action  by  a  schoolmaster,  against  a  father  for 
an  assault  and  battery,  it  was  held,  that  no  provocation  could 
excuse  the  defendant  from  making  full  compensation  for  the 
actual  injury;  but  if  the  jury  were  satisfied  that  the  defend- 
ant had  no  previous  malice  towards  the  plaintiff,  and  no  design 
to  injure  him  in  the  estimation  of  the  public;  that  he  acted 
in  the  heat  of  passion  caused  by  the  appearance  of  his  son, 
who  had  received  severe  corporeal  punishment  from  the  plain- 
tiff, and  on  the  statements  of  his  son  in  relation  to  his  treat- 
ment by  the  plaintifl";  these  were  circumstances  to  reduce  the 
damages  from  exemplary  to  such  as  were  compensatory." 

§  118.  And,  generally  in  actions  for  willful  injuries  to  the 
person,  where  vindictive  damages  are  claimed,  the  defendant 

«'  Ireland  v.  Elliott,  5  la.,  478;  Waters  v.  Brown,  3  A.  K.  Mar.,  559.  See, 
also,  WiUis  v.  Forest.  2  Duer.  (N.  Y.),  310;  Collins  v.  Todd,  17  Mo.,  537;  Tyson 
V.  Booth,  100  Mass.,  258;  Jacobs  v.  Hoover,  9  Minn.,  204;  Coming  v.  Coming, 
2  Seld.  (N.  Y.),  97. 

«»  Cushman  v.  WaddeU,  1  Bald.  (  U.  S.  C.  C),  59. 


MITIGATION"  OF  DAMAGES.  127 

Pecuniary  Circumstances  of  Defendant. 

should  not  be  restricted,  in  proving  matters  which  took  place 
at  the  very  time  of  the  injury  complained  of.  But  he  has  a 
right  to  show  the  jury  the  true  relations  of  the  parties,  and 
any  facts  and  circumstances  relating  to  the  act,  in  order  that 
they  may  determine  how  far  it  M^as  wanton,  malicious,  vindic- 
tive or  unprovoked,  or  how  far  extenuated  by  the  conduct, 
declarations  or  provocations  of  the  plaintiff."' 

And,  although  the  general  rule  is  that  the  defendant  cannot 
show,  in  mitigation,  provocations  not  strictly  part  of  the  res 
gestce;  yet  where  the  provocation  of  an  assault  and  battery 
consisted  of  a  combined  attack,  in  which  the  plaintiff  took 
part  as  a  confederate,  it  was  held  admissible  to  show  that  he 
took  part  in  previous  threats  and  attacks." 

§  1 19.  And,  in  an  action  for  an  assault  and  battery,  it  may 
be  proper  to  show  the  attending  circumstances,  as  they  fre- 
quently characterize  the  transaction  and  are  a  part  of  it, 
though  not  the  act  of  either  party. 

Thus,  in  such  an  action,  it  was  held  proper  to  show  whether 
the  defendant,  Avhen  attacked,  was  alone  or  surrounded  by  persons 
who  could  aid  him;  whether  his  life  or  personal  safety  were  in 
peril;  and  whether  persons,  if  present  at  the  time,  were 
friendly  or  unfriendly  to  him,  and  declarations  made  by  them 
at  the  time.  And,  in  such  a  case,  it  was  held  proper  to  show 
that  a  bystander  interfered  by  act  or  speech,  and  what  such 
act  or  speech  was.  But  proof  of  the  words  spokei>  is  evidence 
only  of  the  fact,  and  not  of  the  truth  of  the  words." 

§  120.    Pecuniary  Circumstances  of  the  Defendant. 

— In  a  recent  case,  in  New  Hampshire,  it  was  held  that  where 
punitive  damages  are  proper  to  be  awarded,  it  is  also  proper 
for  the  jury  to  inquire  into  the  pecuniary  circumstances  of  the 
defendant,  because  what  would  be  a  severe  punishment  for  a 

«3  Prentiss  v.  Shaw,  56  Me.,  427  (1869). 
«4  Tyson  v.  Booth,  100  Mass.,  258  (1868). 
6s  Castner  v.  SUker,  33  N.  J.  L.,  (4  Vr.,)  507. 


128  THE  LAW  OF  DAMAGES. 

Bad  Character  of  Plaintiff  no  Mitigation— Indictment— Conviction— Fine. 

poor  man  by  way  of  punitive  or  exemplary  damages,  might 
not  be  felt  by  one  who  was  rich." 

This  doctrine,  however,  is  not  generally  accepted  and  •  it 
may  be  questioned  whether  it  is  sound  in  principle.  If  the 
wealth  of  the  defendant  may  be  shown  to  increase  damages, 
the  correlative  of  the  proposition  should  also  be  accepted  and 
the  defendant  allowed  to  mitigate  his  damages  by  showing  his 
povert3^" 

Under  such  a  rule,  the  amount  of  a  recovery  for  a  tort 
might  be  exceedingly  uncertain.  One  day  a  man  might 
recover  a  large  amount  of  damages,  for  the  same  injury,  for 
which  the  next  day  he  could  only  recover  a  much  smaller 
amount,  depending  upon  the  pecuniary  ability  of  the  defend- 
ant on  the  day  of  trial. 

§  121.    Bad  Character  of  the  Plaintiff— no  3Iitiga- 

tion* — The  general  bad  character  of  the  plaintiff  in  such  an 
action,  or  his  association  with  persons  of  ill  repute,  cannot 
palliate  the  offense  or  mitigate  the  damages.**  Nor  can  the 
defendant  show  that  the  injury  was  more  aggravated  by  the 
intemperate  habits  of  the  plaintiff  than  it  would  have  been  if 
his  habits  had  been  temperate."' 

§  122.  Indictment,  Conviction  or  Fine  for  the  Of- 
fense.— It  has  also  been  held  in  some  states  that  the  defend- 
ant cannot  show,  in  mitigation  of  damages,  that  he  has  been 
indicted,  convicted  or  fined  for  the  same  offense,"  although 
this  was  formerly  a  defense  to  a  civil  action."     But  in  Penn- 

«  Belknap  v.  Boston  &  Maine  R.  Co.,  49  N.  H.,  358. 

«7  See  Hunt  v.  Chicago  &  N.  "W.,  etc.,  R.  Co.,  26  la.,  363,  and  Guenge- 
rech  V.  Smith.  34  la.,  848,  where  the  doctrine  of  Belknap  v.  Boston,  etc., 
R.  Co.,  supra,  is  questioned  if  not  repudiated.  See  also,  Kamey  v.  Pailsey, 
13  la.,  89. 

^  Bruce  v.  Priest,  5  Allen,  (Mass.),  100. 

69  Littlehale  v.  Dix,  11  Gush.  (Mass.),  364. 

7°  Wolff  V.  Cohen,  8  Rich.,  144;  Wheatley  v.  Thorn,  23  Miss.,  62;  Phillips 
V.  Kelley,  29  Ala.,  628. 

7'  1  Hill,  on  Torts.  58.  59. 


MITIGATION  OF  DAMAGES.  129 

Malicious  Prosecution— Moral  Guilt. 

sylvania  the  record  of  a  trial  on  an  indictment  for  the  same 
offense,  was  held  admissible  in  evidence  in  mitigation."  And 
we  have  already  noticed  that  a  conviction  or  payment  of  a 
fine,  for  the  same  ofi'ense,  is  held  in  North  Carolina  to  be 
proper  matter  in  mitigation  of  exemplary  damages."  And 
we  have  fully*  indorsed  this  doctrine  as  founded  on  the 
soundest  principles. 

§  123.  In  an  action  by  the  husband  and  wife  for  an 
assault  and  battery  committed  on  the  wife,  previous  miscon- 
duct of  the  husband  cannot  be  shown  in  mitigation.  Nor 
wliere  the  act  complained  of  consists  in  forcibly  turning  the 
plaintiff  out  of  premises,  which  lie  is  fraudulently  occupying, 
can  the  fraudulent  possession  be  shown  in  mitigation  of  the 
real  and  actual  damages  sustained.  But  it  would  be  compe- 
tent to  show  such  facts  in  mitigation  of  exemplary  damages, 
where  the  fraud  had  been  recently  discovered,  and  the  defend- 
ant acted  under  an  excitement  produced  thereby.'" 

§  124.  Malicious  Prosecution.— In  actions  for4amages 
for  malicious  prosecutions  it  must  appear,  not  only  that  there 
was  malice  but  a  want  of  probable  cause,"  and  as  we  shall 
hereafter  have  occasion  more  fully  to  notice,  a  termination  of  the 
prosecution,  either  civil  or  criminal,  in  favor  of  the  plaintiff.'" 

§  125.  Moral  Guilt— And  where  the  plaintiff  has  incur- 
red the  moral  guilt  of  the  crime  of  which  the  defendant 
sought  to  convict  him,  and  he  escaped  conviction  merely  on 
technical  grounds,  if  he  can  recover  anything  in  the  action  it 
can  only  be  actual  damages."  

72  Porter  v.  Seiler,  23  Pa.  St.,  424. 

73  Ante,  §§  85,  86. 

74  Jacobs  V.  Hoover,  9  Minn.,  204. 

75  Savil  V.  Roberts,  1  Salk.,  14;  Parton  v.  Honnor.  1  Bos.  &  P.,  205;  Van 
Duszer  V.  Lendeman,  10  Johns.,  106;  The  South  Royalton  Bk.  v.  SafFord 
Bk.,  27  Vt.,  505;  Gould  v.  Gardner,  11  La.  An.,  289;  Lisk  v.  Mathias,  11  La. 
An.',  418. 

76  See,  x>ost,  §  542,  et  seq. 

77  Sears  v.  Hathaway,  12  Gal.,  277. 

9 


130  THE  LAW  OF  DAMAGES. 


statement  of  Kule— Application. 


CHAPTER  VIII. 


OF  THE  DUTY  OF  THE  PLAINTIFF  TO  PREVENT 
AN  INJURY  AND  THE  CONSE- 
QUENCES OF  IT. 

Section  126.    Statement  of  the  Bule — Application. 

129.  "Where  the  Injury  is  Aggravated  by  the  Plaintiff. 

130.  Instances — Neglect  of  Reasonable  means  to  Prevent. 

132.  "Where    the    Plaintiff    may   Becover  Notwithstanding   his 

Negligence. 

133.  Application  of  the  Doctrine  to  Contracts  for  Services, 

§  126.     Statement  of  the   Rule— Application.— The 

eighth  proposition  stated  in  tlie  classification  and  summary 
contained  in  the  introductory  chapter,  is  as  follows:  "It  is 
the  duty  of  a  person  to  use  ordinary  and  reasonable  care  and 
means  to  prevent  an  injury  and  the  consequences  of  it.  And 
he  can  only  recover  damages  for  such  losses  as  could  not,  by 
such  care  and  means,  be  avoided." 

This  qualification  of  the  rule  of  general  liability,  we  will 
proceed  to  illustrate.  The  principle  is  clearly  recognized  by 
the  adjudications.  It  is  the  plaintiflPs  own  fault  if  he  tails  to 
use  reasonable  eiforts,  care  and  diligence  to  protect  himself 
from  injury  or  loss;  and  where  he  fails  so  to  do  he  will  not 
be  permitted  to  say  that  the  loss  that  might  have  been  thus 
avoided,  was  caused  by  the  wrong  of  the  defendant;  for  it  is 
against  the  policy  of  the  law,  as  well  as  common  principles  of 
justice,  to  permit  a  party  to  reap  any  advantage  from  his  own 


DUTY  OF  THE  PLAINTIFF.  131 


statement  of  llule— Application. 


negligence  or  want  of  ordinary  care,  or  from  his  own  wrong, 
or  from  his  own  and  another's  neglect  or  wrong.  In  such 
cases,  the  maxim,  nullus  commodum  capere  potest  de  injuria 
5i/ajr?rr//?na,  applies;  and  the  rule  is  applicable  in  cases  of 
contracts  as  well  as  in  torts.' 

§  127.  The  principle  applies,  whether  the  plaintiffs  neg- 
ligence contril)uted  to  the  injury,  or  whether  by  his  subse- 
quent negligence  and  failure  to  use  reasonable  means  to  pre- 
vent the  consequences  of  an  injury,  the  loss  is  greater  than  it 
would  otherwise  have  been. 

In  either  case  he  cannot  recover  for  the  loss  sustained  by 
liis  own  fiiult.  But  for  whatever  loss  is  the  sole  consequence 
of  the  defendant's  fault  and  which  could  not  be  avoided  by 
the  care  and  diligence  which  we  have  indicated,  the  plaintiff 
may  properly  recover  damages." 

§  128.  Thus,  in  an  action  where  it  appeared  that  the 
defendant  had,  in  the  niontli  of  November,  broken  down  the 
plaintiff's  fence,  and  the  plaintiff  failed  to  repair  the  same 
until  the  following  May,  and  in  the  meantime  cattle  got  in 
through  the  opening,  and  destroyed  the  crop  on  the  land, 
planted  the  year  next  following  the  injury  to  the  fence,  and 
the  action  was  for  the  loss  of  the  subsequent  year's  crop,  as 
well  as  for  the  expense  of  repairing  the  fence,  in  the  Supreme 
Court  of  Massachusetts,  Siiaw,  C.  J.,  uses  the  followino- 
language,  illustrating  the  application  of  the  rule:  "Sup- 
pose a  man  should  enter  his  neighbor's  field  unlawfully, 
and  leave  the  gate  open;  if,  before  the  owner  knows  it, 
cattle  enter  and  destroy  the  crop,  the  trespasser  is  responsible. 
But  if  the  owner  sees^the  gate  open,  and  passes  it  frequently, 

'  Douglas  V.  Stevens,  18  Mo.,  362;  Illinois  C.  R.  R.  Co.  v.  Finigan,  21  111., 
646;  Broom's  Leg.  Max.,  279. 

»  State  ex  rel.  Price  v.  Powell,  44  Mo.,  436;  Shearman  v.  Fall  River  Iron 
Works,  2  Allen,  524;  Wright  v.  111.  etc.,  R.  Co.,  20  la.,  195;  French  v.  Vin- 
ing,  102  Mass.,  132,  (1869).  See,  for  full  consideration  of  damages  as 
affected  by  contiibutory  negligence,  post,  Chap.  10. 


132  THE  LAW  OF  DAMAGES. 


Where  Injury  Aggravated  by  Plaintiff. 


and  willfully  or  obstinately,  or  through  gross  negligence, 
leaves  it  open  all  summer  and  cattle  get  in,  it  is  his  own 
folly.  So,  if  one  throw  a  stone  and  break  a  window,  the  cost 
of  repairing  the  window  is  the  ordinary  measure  of  damages. 
But  if  the  owner  suffers  the  window  to  remain  without  repair- 
ing, a  great  length  of  time  after  notice  of  the  fact,  and  his 
furniture  or  pictures  or  other  valuable  articles  sustain  dam- 
ao-e,  or  the  rain  beats  in  and  rots  the  window,  this  damage 
would  be  too  remote.  We  think  the  jury  were  rightly 
instructed,  that  as  the  trepass  consisted  in  removing  a  few 
rods  of  fence,  the  proper  measure  of  damage  was  the  cost  of 
repairing  it,  and  not  the  loss  of  the  subsequent  year's  crop, 
arising  from  the  want  of  such  fence." ' 

§  129.  Where  tlie  Injury  is  Aggravated  by  the 
Plaintiff.— The  general  rule  is,  that  the  defendant  is  respon- 
sible for  all  losses  that  are  the  direct  and  natural  consequences 
of  his  wrong;  such  as  by  a  wound  inflicted,  and  sickness,  dis- 
ability, and  expenses  incurred  in  consequence  thereof.  But 
where  the  consequences  have  been  aggravated  by  the  gross 
neglect  or  the  want  of  ordinary  care  on  the  part  of  the  plain- 
tiff; the  defendant  is  not  responsible  for  such  damages." 

"  It  is  easy  to  imagine,"  says  Justice  Wadow,  "  some  trivial 
misconduct  or  slight  negligence,  which  shall  do  no  direct 
harm,  but  setting  in  motion  some  second  agent  shall  move  a 
third,  and  so  on  until  the  most  disastrous  consequences  shall 

3  Loker  v.  Damon,  17  Pick.  (Mass.),  284.  See  also,  Thompson  v.  Shattuck, 
2  Met.  (Mass.),  615;  3  Parsons  on  Con.,  177;  2  Id.,  457,  note ;  Flower  v.  Adam, 

2  Taunt.,  314;  Miller  v.  Mariner's  Church,  7  Greenlf.,  51;  Hamilton  v. 
McPherson,  28  N.  Y.,  72;  Davis  v.  Fish,  1  Greene  (la.),  407;  Chase  v.  The 
New  York,  etc.,  R.  Co.,  24  Barb.,  273.  See,  also,  Hassa  v.  Junger,  15  Wis., 
598,  which  was  an  action  for  damages  to  plaintiff's  crop,  by  the  defendant's 
cattle  getting  on  to  it  through  the  removal  of  a  fence  by  the  defendant  some 
time  before  the  crop  was  sown. 

4  Walker  v.  EUis,  1  Sneed  (Tenn.),  515;  Davis  v.  Fish,  1  Greene  (la.),  406; 

3  Pars,  on  Con.,  177;  Dorwin  v.  Potter,  5  Denio,  (N.  Y.),  306.  See,  also, 
Stover  v.  BlueMl,  51  Me.,  439. 


DUTY  OF  THE  PLAINTIFF.  133 

Neglect  of  Reasonable  Means  to  Prevent  Loss. 

ensue.  The  first  wrongdoer,  unfortunate  rather  than  seri- 
ously blamable,  cannot  be  made  answerable  for  these  conse- 
quences. He  shall  not  answer  for  those  which  the  party 
aggrieved  has  contributed  by  his  own  blamable  negligence  or 
wrong  to  produce,  or  for  any  which  such  party  by  proper  dil- 
igence might  have  prevented.^ 

§  130.  Instances  of  Neglect  of  Reasonable  Means 
to  Prevent  Loss. — In  an  action  against  a  county,  upon  a 
quantum  Tneruit^  for  work  done  in  the  erection  of  a  court 
house,  the  defendant,  for  cross-claim,  set  up  damages  alleged 
to  have  been  sustained  by  defective  work  and  materials. 

There  was  evidence  on  the  trial  tending  to  show,  that  owing 
to  the  imperfect  manner  in  which  the  belfry  was  constructed 
the  roof  leaked,  and  this  caused  the  plastering,  sometime 
afterwards,  to  fall  off,  and  that  it  would  cost  one  hundred 
dollars  to  make  good  the  damage  by  re-plastering  the  same 
The  plaintiff,  on  the  trial,  asked  the  court  to  give  the  following 
instructions:  "That  if  the  defendant  could  have  protected 
itself  from  damage  which  would  naturally  result  from  the 
alleged  defects  in  the  construction  of  said  court  house,  it  was 
bound  to  do  so,  if  practicable,  at  a  moderate  expense  or  by 
ordinary  efforts,  and  it  can  charge  the  plaintiff  for  .  such 
expense  and  efforts  only,  and  for  the  damages  which  could 
not  be  prevented  by  the  exercise  of  due  diligence." 

This  instruction  was  refused.  On  appeal,  Dillon,  J.  said: 
"It  is  our  opinion  that  the  instruction  asked  was  pertinent, 
and  the  case  one  to  which  the  doctrine  asserted  (which  should 
be  cautiously  applied)  was  applicable."  ° 

§  131.  So,  in  an  action  against  a  city  for  damages  to  the 
plaintiffs'  lot  in  consequence  of  a  flow  of  water  thereon,  caused 

s  Harrison  v.  Berkley,  1  Strobh.  (S.  C),  548.  But  an  injured  person  is  not 
bound  to  take  extraordinary  care  to  avoid  damage.  Shear.  &  Red.  on  Neg. 
§  598.  See,  also,  McGrew  v.  Stone,  53  Pa.  St.,  436;  Bennett  v.  Lockwood,  20 
Wend.,  223.      • 

6  Mather  v  Butler  County,  28  la.,  253. 


134  THE  LAW  OF  DAMAGES. 

Where  PlaiutifE  may  Recover  Notwithstanding  Negligence. 

bj  the  negligent  manner  of  constructing  the  gutters  of  a  street, 
it  was  held,  that  they  could  not  recover  if  it  appeared  that  they 
conld  have  prevented  the  injury  by  the  use  of  ordinary  means 
or  at  a  moderate  expense;  and  that  an  instruction  given  in  the 
court  below  on  the  trial,  that  the  jury  "must  find  for  the 
plaintiffs,  unless  a  slight  expense  and  slight  effort  would  have 
jDrevented  the  injury,"  was  accordingly  erroneous.' 

§  132.  Where  the  Plaintiff  may  Recoer  Notwith- 
standing his  Negligence.— In  the  Court  of  Exchequer  in 
England,  it  was  held,  that  although  "there  may  have  been 
negligence  on  the  part  of  both  parties  yet  the  plaintiff  may 
be  entitled  to  recover.  The  rule  is,  that  although  there  may 
have  been  negligence  on  the  part  of  the  plaintiff,  yet,  unless 
he  might  by  the  exercise  of  ordinary  care  have  avoided  the 
consequences  of  the  defendant's  negligence,  he  is  entitled  to 
recover.  If,  by  ordinary  care,  he  might  have  avoided  them, 
he  is  the  author  of  his  own  wrong."  * 

We  shall  have  occasion  hereafter  to  consider  the  subject  of 
contributory  negligence,  as  connected  more  particularly  with 
the  original  injury  in  cases  of  torts." 

7  Simpson  &  Simpson  v.  The  City  of  Keokuk,  34  Iowa,  253.  See,  also.  The 
Cmcinnati,  etc.,  R.  Co.  v.  Rogers,  2-4  Ind.,  103;  Heavilon  v.  Kramer,  31  Ind., 
24;  State  v.  PoweU,  44  Mo.,  4.36;  Miller  v.  Roy,  10  La.  An.,  231;  Dufort  v. 
Abadie,  23  Id.,  280. 

8  Bridge  v.  Grand  J.  R.  Co.,  3  Mees.  &  Wels.,  244.  See,  also,  Davis  v. 
Mann,  10  M.  &  W.,  546;  Marriot  v.  Stanley,  1  Man.  &  Gr.,  568;  Lord  EUen- 
borough,  in  Butterfield  v.  Forrester,  11  East,  60;  Starkie  on  Ev.,  Vol.  2,  741; 
Horndem  v.  Dalton,  1  Car.  &  Payne,  181.  In  actions  against  tortfeasors  the 
loss  of  profits  may  be  taken  into  view  in  estimating  the  damages,  though  in 
an  action  for  a  breach  of  contract,  the  general  rule  is  otherwise.  This  does 
not  necessarily  embrace  the  right  to  recover  purely  contingent  or  speculative 
profits,  but  will  warrant  the  recovery  of  such  as  are  proved  to  be  the  direct 
consequence  of  the  wrong  which  is  to  be  redressed.  Walker  v.  Post,  6  Duer 
(N.  Y.),  363.  Shear.  &  Red.  on  Neg.,  §  599.  Speculative  and  merely  pos- 
sible profits  are  never  allowed.  Id.,  §  599  a.  And  nothing  can  be  allowed 
for  loss  of  profits  in  an  illegal  business.     Id. 

9  See,  Chap.  10. 


DUTY  OF  THE  PLAI:N"TIFF.  135 

Doctrine  of  Contracts  for  Services. 

§  133.  Application  of  the  Doctrine  to  Contracts  for 
Services. — The  principle  we  are  considering  is  also  applicable 
to  breaches  of  contracts  for  personal  services;  as,  where  one 
party  agrees  to  work  for  another  for  a  certain  time  and  for  a 
certain  sum,  which  the  latter  agrees  to  pay,  and  the  employe  . 
is  discharged,  without  any  sufficient  cause,  before  the  period 
for  which  he  was  employed  expires. 

The  employe,  in  such  a  case,  cannot  recover  the  full  amount, 
^ro  rata^  of  the  unexpired  term,  provided  he  could  have  found 
other  suitable  emiDloyment  elsewhere;  or,  if  after  the  dismissal 
he  was  otherwise  profitably  employed.  In  either  case,  whatever 
lie  might  have  thus  earned  or  has  earned,  during  the  balance 
of  the  period  of  the  engagement,  if  less  than  the  pro  rata 
amount  contracted  to  be  paid,  should  be  deducted  from  said 
amount.  And  when  the  amount  thus  earned,  or  that  might 
have  been  earned,  exceeds  the  amount  contracted  to  be  paid, 
nothing  can  be  recovered. 

And  it  is  the  duty  of  a  party  thus  dismissed  to  use  at  least 
ordinary  effort  to  obtain  employment,  and  thereby  lessen  the 
damages.'" 

But,  we  shall  consider  this  subject  more  fully  in  treating 
of  damages  on  breaches  of  contracts  relating  to  personal  ser- 
vices.'' 

So,  where  an  executory  contract  is  renounced  before  the 
performance  by  the  party  undertaking  to  perform,  the  other 
party  cannot  needlessly  increase  the  damages  arising  from  the 
breach.'^ 

"  Jones  V.  Van  Patten,  3  Ind..  107.    See,  also.  Hunt  v.  Crane,  4  George 
(Miss.),  669;  Costigan  v.  Mohawk  &  Hud.  R.  Co.,  2  Den.  (N.  Y.),  609. 
"  See,  po^t,  §  340. 
"  Wormer's  case,  4  Ct.  of  CI.  R.,  258.     See  also,  Hawker's  case,  Id.,  651, 


136  THE  LAW  OF  DAMAGES. 


Liquidated  Damages. 


OHAPTEE  IX. 


OF   THE  EFFECT   OF   STIPULATIONS   IN   EEFER- 
ENCE  TO  DAMAGES. 

Section  134.  Liquidated  Damages. 

135.  Penalty  or  Liquidated  Damages— Construction. 

137.  "Where  the  sum  Designated  is  Treated  as  a  Penalty. 

138.  Where  it  is  Treated  as  Liquidated  Damages. 

139.  Instances  in  England— Where  a  Penalty. 

142.  Instance  in  England— Where  Liquidated  Damages. 

145.  English  Doctrine  Followed  in  this  Country. 

147.  American  Decisions— Liquidated  Damages. 

148.  Where  the  Price  of  Property  in  Fixed. 

149.  Damages  not  to  Exceed  the  Liquidated  Sum. 

150.  Cannot  generally  Exceed  the  Penalty. 

153.  Where  the  Amount  due  is  Certain— Usury. 

154.  Propositions  Deducible  from  the  Decisions  -Penalty. 

155.  When  Treated  as  Liquidated  Damages. 

156.  Kules  of  Construction. 

§  134.  Liquidated  Damages.— It  is  not  unusual  for  the 
parties  to  a  contract  to  stipulate  tlierein,  in  reference  to  the 
amount  of  damages,  in  case  of  a  breach  thereof.' 

The  sum  thus  fixed  upon  is  generally  called  liquidated 
damages.  x 

The  right  of  parties  to  thus  stipulate  is  unquestionable.  In 
many  cases  it  is  the  only  practicable  way  of  obtaining  redress 

'  See  rule  9,  ante,  %  32. 


EFFECT  OF  STIPULATIONS.  13T 

Liquidated  Damages— Construction. 

in  case  of  a  breach.  Public  policy  and  private  interests  maj 
be  thereby  promoted.  And  where  such  a  contract  is  fairly 
made  and  for  the  legitimate  purpose  of  determining  the  dam- 
ages, either  for  a  breach  of  the  whole  or  any  particular  provis- 
ion of  the  contract,  the  amount  thus  fixed  will  control  and 
limit  the  damages  recoverable,  whether  the  actual  damages  be 
greater  or  less  than  the  sum  stipulated.  Hence,  liquidated 
damages  constitute  an  element,  which  affects  the  amount 
which  may  be  recovered. 

§135.  Penalty  or  Liquidated  Damages— Construc- 
tion.— Controversies  in  relation  to  this  subject  usually  grow 
out  of  the  phraseology  used  in  contracts  and  the  construction 
of  them,  and  frequently  turn  upon  the  question  whether  the 
sum  stated  is  intended  as  a  penalty  or  liquidated  damages. 

The  courts  do  not  usually  favor  forfeitures  or  penalties  for 
breaches  of  contracts.  And  especially,  were  penalties  odious 
to  courts  of  equity,  even  when  they  were  enforced  in  the  courts 
of  law.  Courts  of  equity  came  finally  to  regard  the  penal 
sum  in  bonds,  as  only  intended  to  secure  the  principal  sum 
due,  or  the  performance  of  the  contract,  and  recovery  thereon 
was  limited  to  the  actual  damages  sustained  by  a  breach 
thereof. 

This  practice  of  the  courts  of  equity,  has  been  followed  by 
the  courts  of  law,  and,  it  is  now  well  settled,  both  in  law  and 
equity  that,  where  a  penalty  is  named,  the  party  in  fault  shall 
not  be  required  to  pay  more  on  a  breach  thereof  than  if  the 
penalty  had  not  been  named."^  Hence  the  importance  of  the 
question,  whether  the  designated  amount  is  a  penalty  or  liqui- 
dated damages,  will  be  apparent. 

§  136.  The  weight  of  authority  seems  to  support  the  posi- 
tion, that  the  sum  fixed  upon  will  be  regarded  as  a  penalty  or 
liquidated  damages  according  to  the  intention  of  the  parties, 

'  Gower  &  Holt  v.  Carter  &  Shattuck,  3  la.,  244;  Foley  v.  McKegan,  4  la., 
1;  3  Parsons  on  Con.,  156,  157;  2  Gr.  Ev.,  §  257,  et  seq. 


138  THE  LAW  OF  DAMAGES. 


Where  sum  Designated  is  Treated  as  Penalty. 


and  that  this  intention  may  be  gatliered  from  the  whole  instru- 
ment, the  subject  matter  of  the  contract,  and  extraneous  facts 
and  circumstances. 

It  will  not  depend  upon  the  mere  use  of  the  words,  "  pen- 
alty," "forfeiture,"  or  "liquidated  damages,"  in  the  instru- 
ment, whether  the  sum  named  be  construed  as  a  penalty  or 
liquidated  damages.  They  are  not  conclusive  in  determining 
the  intention.^ 

The  tendency  of  the  courts  is  to  treat  the  sum  named  as  a 
penalty,  and  not  as  liquidated  damages  for,  under  the  modern 
doctrine,  liquidated  damages,  like  the  penalty  formerly,  may 
be  unjust  and  oppressive  and  far  exceed  or  fall  short  of  the 
actual  damages  sustained." 

§  137.  Where  the  sum  Designated  is  Treated  as  a 
Penalty.— Where  a  large  sum  is  mentioned  in  an  instrument 
as  a  forfeiture  on  failure  of  payment  of  a  small  amount,'  or 
where  in  a  contract  for  the  performance  of  divers  things  of 
very  different  degrees  of  importance  and  value,  a  certain  sum 
is  fixed,  as  "liquidated  damages"  for  the  failure  to  perform, 
the  amount  fixed  has  been  held  to  import  a  penalty  and  not 
to  be  liquidated  damages.' 

3  Perkins  v.  Lyman,  11  Mass.,  76;  Foley  v.  McKegan,  4  la.,  supra;  Gower 
V.  Saltmarsh,  11  Mo.,  271;  Brewster  v.  Edgerly.  13  N.  H.,  275;  Lindsay  v. 
Anesley,  6  Ired.  (N.  C),  L.  186;  Maurice  v.  Brady,  15  Abb.  (N.  Y.)  Pr., 
173;  Hosmer  v.  True,  19  Barb.  (N.  Y.),  106;  Streeper  v.  Williams,  48  Pa. 
St.,  450;  Durst  v.  Swift,  11  Tex.,  273;  Gowen  v.  Garish,  15  Me.,  273;  Ran- 
dal V.  Everett,  1  Mood.  &  M.,  42;  2  Car.  &.  P.,  577;  Pinkerton  v.  Gaston,  2 
B.  &  A.,  704;  Dimech  v.  Corlett,  12  Moore  (P.  C.),  199;  Reiley  v.  Jones,  1 
Bing..  302;  Sparrow  v.  Paris,  7  H.  &  N.,  594;  8  Jur.  N.  S.,  391;  31  L.  J. 
Exch.,  137;  Hamaker  v.  Schroers,  49  Mo.,  406;  Jaquith  v.  Hudson,  5  Mich., 
123;  Clark  v.  Kay,  26  Geo.,  403;  Basye  v.  Ambrose,  28  Mo.,  39. 

*  WaUis  V.  Carpenter,  13  Allen  (Mass.),  19;  Cheddicke  v.  Marsh,  21  N'.  J. 
L.,  463;  Baird  v.  ToUiver.  6  Humph.  (Tenn.),  186. 

s  Watts  V.  Sheppard,  2  Ala.,  425. 

6Dailey  V.  Litchfield,  10  Mich.,  29;  Bagley  v.  Peddie,  5  Sandf.  (N.  Y.), 
192;  Basye  v.  Ambrose.  28  Mo.,  39;  Hammer  v.  Breedenback,  31  Mo.,  49. 
See  also,  Taylor  v.  Sandford,  7.  Wheat.,  13;  Van  Buren  v.  Digges,  11  How. 
(U.  S.),  461 J  Burrage  v.  Crump,  3  Jones  (N.  C),  L.  330;  Abrams  v.  Kounts, 


EFFECT  OF  STIPULATIOIs"S.  139 


Liquidated  Damages— English  Cases. 


§  138.  Where  the  sum  Expressed  is  Treated  as 
Liquidated  Damages.— Where  there  is  uncertainty  as  to  the 
extent  of  the  injury,  and  the  stipulated  sura  seems  reasonable 
and  proper  under  all  the  circumstances  of  the  case,  and  espec- 
ially, where  it  is  clearly  expressed  to  be  the  liquidated  dam- 
ages to  be  paid  on  a  breach  of  the  whole  contract,  or,  on  the 
breach  of  any  certain  provision  of  the  contract,  then,  it  will 
be  regarded  as  liquidated  damages.' 

§  139.  English  Cases  where  the  sum  was  held  to  be 
a  Penalty. — A  leading  English  case  construing  an  agreement 
of  this  kind  was  that  of  Astley  v.   Weldon. 

By  articles  of  agreement  between  the  plaintiff  and  defend- 
ant it  was  stipulated,  in  substance,  that  the  plaintiff  should 
pay  the  defendant  for  her  services  as  a  performer  at  his 
theatres,  £1  lis.  6d.,  per  week,  for  the  period  of  three 
years;  and  also  to  pay  all  her  traveling  expenses  when  remov- 
ino-  from  one  theatre  to  another.  The  defendant  agreed  that 
she  would  perform  at  the  theatres,  attend  rehearsals,  comply 
with  the  rules  and  regulations  adopted  at  them,  and  pay  such 
fines  and  penalties  as  might  be  imposed  for  a  failure  to 
observe  them. 

And,  it  was  further  agreed  by  the  parties,  that  if  either  of 

4  Ohio,  214;  Goldsboro  v.  Baker,  3  Cranch,  (C.  C),  48;  Haldeman  v.  Jen- 
kins, 14  Ark.,  329;  Kash  v.  Hermosilla,  9  Cal.,  584;  Berry  v.  Wisdom,  3  Ohio 
St.,  241;  2  Or.  Ev.,  §258;  Hamaker  v.  Schroers,  49  Mo.,  406;  Long  v.  Towl, 
42  Mo.,  545;  Morse  v.  Rathburn,  Id.,  594;  Boys  v.  Ancel,  7  Scott,  364;  5 
Bing.  (N.  C).  390  In  Basye  v.  Ambrose,  sujyra,  Scott,  J.,  remarks:  "Where 
the  agreement  secures  the  performance  or  omission  of  various  acts  which  are 
not  measurable  by  any  exact  pecmiiary  standard,  together  with  one  or  more 
acts  in  respect  of  which  the  damages  on  a  breach  of  contract  are  readily 
ascertainable  by  a  jury,  and  there  is  a  sum  stipulated  as  damages  for  a  breach 
of  any  one  of  the  covenants,  such  sum  is  held  to  be  a  penalty  merely." 

7  Pearson  v.  Williams,  26  Wend.,  630;  Dakin  v.  WiUiams,  17  Wend.,  447; 
Powell  V.  Burrows,  54  Pa.  St.,  329;  Brown  v.  Maulsby,  17  Ind.,  10;  Chase 
V.  Allen,  13  Gray,  (Mass.),  42;  Dunlap  v.  Gregory,  10  N.  Y.,  241;  Kembel  v. 
Farren,  6  Bing.,  141;  3  M.  &  P.,  425;  WiUiams  v.  Greene,  14  Ark.,  315; 
Young  V.  White,  5  Watts  (Pa.),  460. 


140  THE  LAW  OF  DAMAGES. 

English  Cases. 

them  neglected  to  perforin  tlie  agreement  the  party  failing 
should  pay  to  the  other  £200. 

There  was  a  failure  to  perform  by  the  defendant,  and  a  suit 
brought  for  the  £200  as  liquidated  damages.  The  court  held 
the  sum  designated  a  penalty,  and  not  liquidated  damages. 

Lord  Eldon  remarked:  "Where  a  doubt  is  stated,  whether 
the  sum  inserted  be  intended  as  a  penalty  or  not,  if  a  certain 
damage  less  than  that  sum  is  made  payable  upon  the  face  of 
the  same  instrument,  in  case  the  act  intended  to  be  prohibited 
be  done,  that  sum  shall  be  construed  to  be  a  penalty.  *  *  * 
It  would  be  absurd  to  hold  that  because  the  £1  lis.  6d.,  is  a 
liquidated  sum,  therefore,  the  plaintiff  could  not  be  called  upon 
for  more  and  yet,  that  in  consequence  of  his  non-payment  of  the 
defendant's  traveling  expenses,  he  should  be  liable  to  the 
whole  sum  of  £200  because  those  expenses  are  unascertained.'" 

§  140.  And  in  a  subsequent  case,  there  was  an  agreement 
that  the  defendant  should  act  as  principal  comedian  at  Covent 
Garden,  for  four  seasons,  and  to  conform  to  the  regulations  of 
the  theatre,  and  the  plaintiff  was  to  pay  the  defendant  £3  8s. 
8d.,  every  night  the  theatre  should  be  open.  There  were  sev- 
eral other  stipulations  of  various  degrees  of  importance  on  each 
side,  some  sounding  in  damages  and  others  relating  to  the 
payment  of  money.  It  was  further  provided,  that  if  either 
party  failed  to  fulfill  his  agreement  or  any  part  thereof,  or  any 
stipulation  therein  contained,  such  party  should  pay  to  the 
other  £1,000,  to  which  sum  it  was  agreed  the  damages  would 
amount,  and  which  sum  was  declared  by  the  parties  to  be 
"liquidated  and  ascertained  damages,  and  not  a  penalty  or 
penal  sum  or  in  the  nature  thereof." 

The  defendant  refused  to  act,  and  a  suit  was  brought  for 
the  £1,000.  There  was  a  verdict  for  £750  for  the  plaintiff,  and 
a  motion  was  made  to  increase  it  to  £1,000,  on  the  ground  that 
the  parties  had  fixed  that  sum  as  liquidated  damages,  but  this 

8  2Bos.  &PuU.,  346. 


EFFECT  OF  STIPULATIONS.  141 


English  Cases. 


was  refused.  Tindal,  C.  J.,  remarking:  "It  is  undoubtedly  diffi- 
cult to  suppose  any  words  more  precise  or  explicit  than  those 
used  in  the  agreement;  the  same  declaring  not  only  affirma- 
tively that  the  sum  of  £1,000  should  be  taken  as  liquidated 
damages,  but  negatively,  also,  that  it  should  not  be  consid- 
ered as  a  penalty  or  in  the  nature  thereof.  And  if  the  clause 
had  been  limited  to  breaches  which  were  of  an  uncertain 
nature  and  amount,  we  should  have  thought  it  would  have 
had  the  effect  of  ascertaining  the  damages  upon  any  such 
breach  at  £1,000.  For,  we  see  nothing  illegal  or  unreasonable 
in  the  parties,  by  their  mutual  agreement,  settling  the  amount 
of  damages  uncertain  in  their  nature,  at  any  sum  upon  which 
they  may  agree.  In  many  cases  such  an  agreement  fixes  that 
which  is  almost  impossible  to  be  accurately  ascertained,  and 
in  all  cases  it  saves  the  expense  and  difficulty  of  bringing  a 
witness  to  that  point.  But  in  the  present  case  the  clause  is 
not  so  confined;  it  extends  to  the  breach  of  any  stipulation  by 
either  party.  If,  therefore,  on  the  one  hand  the  plaintiff  had 
neglected  to  make  a  single  payment  of  £3  6s.  8d.  per  day,  or, 
on  the  other  hand  the  defendant  had  refused  to  conform  to 
any  usual  regulation  of  the  theatre,  however  minute  or  unim- 
portant, it  must  have  been  contended  that  the  clause  in  ques- 
tion, in  either  case,  would  have  given  the  stipulated  damages  of 
£1,000.  But  that  a  very  large  sum  should  become  immedi- 
ately payable  in  consequence  of  the  non-payment  of  a  very 
small  sum,  and  that  the  former  should  not  be  considered  as  a 
penalty,  appears  to  be  a  contradiction  of  terms;  the  case  being 
precisely  that  in  which  courts  of  equity  have  always  relieved, 
and  asainst  which  courts  of  law  have  in  modern  times  endeav- 
ored  to  relieve,  by  directing  juries  to  assess  the  real  damages 
sustained  by  a  breach  of  the  agreement.'" 

§  141  .     And  where  it  appeared  that  a  surgeon  had  agreed 
not  to  carry  on  business  at  a  certain  place,  in  consideration  of 

9  Kemble  v.  Farren,  6  Bing.,  141. 


142  THE  LAW  OF  DAMAGES. 

Liquidated  Damages  in  England. 

a  purchase  by  the  plaintiff  of  a  house  and  certain  furniture  of 
the  defendant  and  the  good  will  of  his  business,  and  a  portion 
of  the  purchase  money  was  paid,  and  the  balance  was  to  be 
paid  in  a  short  time;  and  each  party  was  bound  to  the  fulfill- 
ment of  the  contract  in  the  penal  sum  of  £500  as,  and  by  way 
of,  liquidated  damages,  and  an  action  was  brought  for  a  breach 
of  the  surgeon's  agreement  not  to  carry  on  business  at  the 
place  designated,  it  was  held,  that  the  sum  named  was  a  pen- 
alty.- 

§  142.  Instances  in  Enisland  where  the  sum  Desig- 
nated  has  been    Treated  as  Liquidated   Dania^^es  — 

"Where  a  party  bound  himself  not  to  carry  on  the  business  of 
a  perfumer  within  a  certain  district,  in  the  sum  of  £5000,  "as 
and  by  way  of  liquidated  damages,  and  not  of  penalty,"  the 
case  was  held  not  to  be  within  the  rule  in  Kenihle  v.  Farren. 
While  recognizing  the  rule  that  where  the  agreement  contains 
several  stipulations  of  various  degrees  of  importance,  and 
merely  designates  a  sum  to  be  paid  on  a  breach  of  the  agree- 
ment, it  will  be  construed  as  a  penalty;  Alderson,  B.,  said: 
"  But  when  the  damage  is  altogether  uncertain,  and  yet  a 
definite  sum  of  money  is  expressly  made  payable  in  respect 
of  it  by  way  of  liquidated  damages,  those  words  must  be  read 
in  the  ordinary  sense  and  cannot  be  construed  to  import  a 
penalty."  " 

So,  where  the  defendant  contracted  not  to  practice  as  a  sur- 
geon or  apothecary,  at  or  within  seven  miles  of  a  certain 
place,  under  a  penalty  of  £500,  and  failed  to  keep  his  contract, 
it  was  held,  that  the  £500  was  liquidated  damages,  and  not  a 

"  Davies  v.  Penton,  6  Barn,  k  Cres.,  216.  See,  also,  Horner  v.  Flintoff, 
9M.  &  W.  679;  Edwards  v.  Williams,  .5  Taunt.,  247;  Boys  v.  Ancell,  7 
Scott,  364;  5  Bing.,  390;  2  Am.,  9;  3  Jur.,  316;  Belts  v.  Burch,  4  H.  &  N., 
506;  28  Exch.,  267;  1  F.  &  F.,  485.     See,  also,  Maj-ne  on  Dam.,  66. 

"  Green  v.  Price,  13  Mees.  &  Wels.,  695;  14  L.  J.  Exch.,  225,  atErmed  in 
the  Exch.  Cham.;  Price  v.  Green,  16  M.  &  W.,  846;  16  L.  J.  Exch.,  108;  9 
Jur.,  880. 


EFFECT  OF  STIPULATIONS.  143 

Liquidated  Damages  in  England. 

penalty,  although  so  designated  in  the  instrument.  Coltman, 
J.,  in  his  opinion,  said:  "  Although  the  v^ord penalty  which 
yvo\\\A,  prima  facie.,  exclude  the  notion  of  liquidated  damages, 
is  used  here,  we  must  look  at  the  nature  of  the  agreement 
and  the  surrounding  circumstances  to  see  whether  the  parties 
intended  the  sum  mentioned  to  be  a  penalty  or  liquidated 
damages.  Considering  the  nature  of  the  agreement  and  the 
difficulty  the  plaintiff  would  be  under  in  showing  what  spe- 
cific damage  he  had  sustained  from  the  defendant's  breach  of 
it,  I  think  we  can  only  reasonably  construe  it  to  be  a  contract 
for  stipulated  and  ascertained  damages." '' 

§  143.  And,  where  the  plaintiff  purchased  the  lease  of  an 
eating-house  of  the  defendant,  and  the  latter  agreed  not  to  set 
U])  another  Avithin  one  mile  of  it,  under  the  penal  sum  of 
£500,  as  and  for  liquidated  damages.  Best,  C.  J.,  said:  "  In 
this,  and  in  most  other  cases  of  this  sort,  it  would  be  impossi- 
ble to  give  such  evidence  as  would  enable  juries  to  do  com- 
plete justice.  The  claim  for  damages  must  depend  not  only 
on  things  which  have  been  done,  but  on  what  may  be  done, 
which  it  is  impossible  to  prove;  on  the  value  of  the  customers 
which  the  conduct  of  the  vendor  of  the  lease  has  attached 
to  him,  and  what  numbers  his  future  conduct  in  the  house 
that  he  has  taken  is  likely  to  draw  to  him.  We  can  have  no 
safer  guide  to  go  by,  in  deciding  on  the  amount  of  compen- 
sation for  a  breach  of  contract  in  such  cases,  than  that  estimate 
which  the  parties,  each  knowing  all  the  circumstances  of  the 
case,  and  anxiously  taking  care  of  their  respective  interests, 
have  agreed  on.  *  "*  *  In  this  case  the  sum  of  £500  is  to  • 
be  paid  for  the  doing  of  one  thing  only,  namely,  setting  up  a 
victualing-house  within  one  mile  of  the  house  transferred  to 
the  plaintiff.     It  is  called  a  penal  sum,  and  I  will  admit  that 

"  Sainter  v.  Ferguson,  62  Eng.  Com.  Law  R.  (7  C.  B.),  716.  See,  also,  on 
the  subject  of  liquidated  damages,  under  an  agreement  not  to  practice  as 
a  surgeon,  Rawlinson  v.  Clark,  14  Mees.  &  Wels.,  187,  where  the  doc- 
trine of  Green  v.  Price  was  affirmed. 


144  THE  LAW  OF  DAMAGES. 


Liquidated  Damages  in  England. 


the  parties  considered  it  as  something  more  than  compensa- 
tion; but  they  have  expressly  agreed  that  this  penal  sum  siiall 
be  recovered  as  and  for  stipuhited  damages.  When  the  defend- 
ant has  so  unequivocally  agreed,  that  if  he  ever  did  what  it 
has  been  proved  that  he  did,  he  would  pay  £500,  what  right 
has  he  now  to  say  that  the  verdict  against  him  ought  not  to 
be  of  this  amount?"  " 

§  144.  So,  in  a  subsequent  case  in  the  English  Court  of 
Exchequer,  Park,  B.,  remarks  as  follows:  "The  rule  of 
law,  as  laid  down  in  KemUe  v.  Famn,  (which  I  cannot 
help  thinking  was  somewhat  stretched,)  was,  that  although 
the  parties  used  the  words  liquidated  damages^  yet  if 
when  the  contract  was  looked  at  it  was  impossible  to 
say  that  they  intended  that  the  amount  named  would  be  other 
than  a  penalty,  inasmuch  as  the  agreement  contained  various 
stipulations,  some  of  which  were  capable  of  being  measured 
by  a  precise  sum,  and  others  not,  as  for  instance,  where  the 
defendant  was  to  pay  the  plaintiff  a  certain  weekly  salary, 
which  was  capable  of  being  strictly  measured,  *  *  * 
therefore,  upon  a  reasonable  construction  of  the  covenant,  the 
words  'liquidated  damages,'  were  to  be  rejected,  and  the 
amount  treated  as  a  penalty. 

"  That  decision  has  since  been  acted  upon  in  several  cases, 
and  I  do  not  mean  to  dispute  the  authority. 

"  Therefore,  if  a  party  agrees  to  pay  £1000,  on  several  events, 
all  of  which  are  capable  of  accurate  calculation,  the  sum  must 
be  construed  as  a  penalty  and  not  as  liquidated  damages. 
But,  if  there  be  a  contract  consisting  of  one  or  more  stipula- 
tions, the  breach  of  which  cannot  be  measured,  then  the 
parties  must  be  taken  to  have  meant  that  the  sum  agreed  on 
was  to  be  liquidated  da7nages,  and  not  a  penalty.  In  this 
case  there  is  no  pecuniary  stipulation  for  which  a  sum  certain, 
of  less  amount  than  £1,000,  is  to  be  paid,  but  all  the  stipula- 

«3  Crisdee  v.  Bolton,  3  Car.  &  P.,  240. 


EFFECT  OF  STIPULATIONS.  145 

The  English  Doctrine  Followed  in  this  Country. 

tions  are  of  uncertain  value.  Possibly  this  may  have  been  a 
very  unfortunate  contract  for  the  defendant  to  make;  but  with 
that  we  have  nothing  to  do.  Upon  the  true  construction  of 
the  deed  the  amount  is  payable  by  way  of  liquidated  damages^ 
and  not  as  penalty."" 

§  145.  The  English  Doctrine  Followed  in  this 
Country. — The  doctrine  of  the  foregoing  English  cases  has 
also  been  adopted  in  this  country. 

Thus,  an  action  was  brought  upon  a  written  agreement 
which  read  as  follows:  "Conditions  of  agreement  between 
John  McKeegan,  on  the  one  part,  and  Michael  Foley, 
on  the  other.  May  5th,  1853.  I,  John  McKeegan,  have  this 
day  agreed  and  sold  200  acres  of  land,  the  same  more  or  less 
[here  follows  a  description  of  the  land],  for  which  I  am  to 
receive  $880;  $50  of  which  I  am  now  to  receive,  and  the 
same  is  to  be  forfeited  by  Michael  Foley,  if  he  does  not  pay 
the  balance  on  or  before  ihe  10th  day  of  April,  1854;  and 
then  I  will  give  the  deeds  of  the  aforesaid  places  at  the  time 
the  money  is  paid.  I,  the  said  John  McKeegan,  promise  to 
give  the  said  Michael  Foley,  next  April,  together  with  the 
land  [here  follows  several  items  of  personal  property],  and  to 
put  500  rails  on  the  fence  of  the  field.  I  also  bind  mvself, 
under  the  penalty  of  $50,  to  be  paid  to  the  said  Michael 
Foley,  if  I  fail  in  the  fulfillment  of  the  aforesaid  agreement, 
and  to  the  aforesaid  we  both  sign  our  names."  It  was  held, 
by  the  Supreme  Court  of  Iowa,  that  the  sum  inserted  in  the 
contract  to  be  paid  on  non-performance,  was  designed  by  the 
parties  as  a  penalty,  and  not  as  liquidated  damages. 

Wright,  C.  J.  in  delivering  the  opinion  of  the  Court,  said: 
"  "We  are  of  opinion  that  the  sum  inserted  in   this  contract 

'•♦Atkins  V.  Krinner,  4  Exch.,  776.  See,  also,  Lowe  v.  Peers,  4  Burr., 
2225,  where  the  defendant  stipulated  to  pay  £1.000  within  three  months  next 
after  he  should  marry  any  one  else  but  the  plaintiff,  this  was  held  to  be  liqui- 
dated damages.  Fletcher  V.  Dyche,  2  T.  R.,  32;  Reiley  v.  Jones,  1  Bing., 
302;  8  Moore,  244;  Leighton  v.  Wales,  3  M.  &  W.,  545. 
10 


116  THE  LAW  OF  DAMAGES. 

The  English  Doctrine  Followed  in  this  Country. 

to  be  paid  on  its  non-fulfillment,  was  designed  by  the  parties 
as  a  penalty,  and  not  as  liquidated  damages.  In  the  first 
place,  the  parties  have  so  expressly  denominated  it.  And 
while  the  construction  is  not  to  be  conclusively  determined 
by  their  having  so  styled  it,  yet,  in  the  language  of  Ch.  J. 
Marshall  (in  7  Wheaton  13),  '  the  inference  is  much  stronger 
in  fivor  of  its  being  a  penalty  where  it  is  expressly  reserved 
as  one.'  In  the  next  place,  the  agreement  contains  more  than 
one  stipulation,  or  the  defendant  binds  himself  to  do  more 
than  one  act.  And  these  stipulations  differ  materially  in 
their  importance.  He  binds  himself  to  make  a  deed  to  two 
parcels  of  land  (or  places  as  they  are  called  in  the  agreement). 
He  also  undertakes  to  put  on  the  fence  of  the  field  five  hun- 
dred rails,  and  to  deliver  to  plaintiff  various  articles  of  per- 
sonal property.  Suppose  he  performed  his  agreement  as  to  the 
land,  and  delivered  all  the  personal  property  except  the  five 
bushels  of  potatoes,  or  the  two  pigs  therein  named,  it  would 
be  manifestly  unjust  and  oppressive  to  require  him  to  pay 
the  fifty  dollars  named.  On  the  other  hand,  suppose  he  had 
performed  the  unimportant  parts  of  the  agreement,  and  failed 
to  convey  the  land,  is  the  measure  of  the  plaintiff's  damages 
the  same?  The  answer  must  readily  be,  that  in  one  instance 
it  would  be  too  high,  and  in  the  other  it  might  be  too  low. 
But  ao:ain,if  he  fails  entirely  to  perform  either  of  his  covenants 
or  stipulations,  the  reason  is  still  stronger  why  the  damages 
should  be  different,  than  if  he  failed  in  an  unimportant  or 
any  one  important  particular.  *  *  *  ^y^  therefore  con- 
clude that  the  sum  named  in  this  agreement  is  not  the 
measure  of  the  plaintiff's  damages,  but  must  be  treated  as  a 
penalty," 

And  it  was  held  that  the  plaintiff  might  recover  his  actual 
damages  whether  more  or  less  than  the  penalty  named," 

's  Foley  v.  McKeegan,  4  la.,  1,    See,  also,  Lord  v.  Gaddis,  9  Id.,  265. 


EFFECT  OF  STIPULATIONS.  147 

The  English  Doctrine  Followed  in  this  Country. 

§  140.  So,  in  an  action  on  an  agreement  containing  a  num- 
ber of  stijjulations,  damages  for  a  breach  of  some  of  wliich 
■would  be  certain,  and  of  others  uncertain,  and  containing  a 
mutual  covenant,  that  if  either  should  fail  "  in  any  particular 
to  abide  by,  observe  and  perform  the  above  written  agreement, 
or  any  article,  clause,  covenant,  or  promise  therein  contained, 
by  or  on  his  or  their  part  to  be  observed,  kept,  etc.,  the  i)arty 
so  failing  shall  pay  the  other  j'arty  $10,000,  and  no  greater  or 
smaller  sum,  as  and  for  damages  occasioned  by  such  failure," 
the  Supreme  Court  of  Indiana-regarded  the  sum  thus  fixed  as 
a  penalty,  and  not  as  liquidated  damages.'" 

So,  where  a  contract,  for  the  delivery  of  a  large  number  of 
railroad  ties,  provided  that  monthly  estimates  should  be  made, 
by  the  engineer  of  the  road,  of  the  ties  delivered,  and  that  on 
prcvsentation  of  such  estimate,  certified  by  the  engineer,  the 
defendants  were  to  pay  the  same  to  the  plaintiff,  less  ten  per 
cent  which  was  to  be  retained  as  security  for  the  completion 

'*  Carpenter  v.  Lockhart.  1  Ind.,  4:34.  In  case  of  doubt  the  courts  will 
generally  regard  the  sum  fixed  as  a  penalty,  and  hold  the  defendant  to  the 
payment  only  of  the  amount  of  actual  damages.  Baird  v.  Tolliver,  6 
Humph.  (Tenn.),  186.  In  Carpenter  v.  Lockhart.  supra,  the  Supreme  Court 
of  Indiana,  (per  Perkins,  J.,)  remark:  ''Where  an  agreement  contains  various 
stipulations  of  chfFerent  degrees  of  importance,  the  damages  for  the  breach 
of  some  of  wliich  would  be  certain  and  others  uncertain,  and  a  large  sum  is 
expressed  in  the  agreement  as  payable  on  the  breach  of  any  of  the  stipula- 
tions, such  sum  is  always  to  be  regarded  a  penalty  and  not  liquidated  dam- 
ages. Tliis  case  falls  clearly  within  that  rule.  For  instance,  stipulation  five 
is,  that  the  individual  accounts,  etc.,  of  each  party  shall  be  brought  into  set- 
tlement. Stipulation  seven,  requires  each  party  to  account  for  all  moneys 
received.  Stipulation  nine,  is  that  mistakes  shall  be  corrected  when  discov- 
ered. Now,  for  a  violation  of  either  of  these  stipulations  the  damages  would 
be  certain.  The  amount  of  the  accounts  or  money  withheld,  or  of  the  mis- 
take, the  correction  of  which  should  be  refused,  would  enable  a  court  or  jury 
to  detennine  them.  So  of  other  of  the  stipulations.  On  the  other  hand, 
stipulation  one,  requiring  a  dismissal  of  the  chanceiy  suit.  Stipulation  six, 
requiring  notes,  to  the  acceptance  of  A.  Warner,  to  be  given.  Stipulation 
fifteen,  for  the  giving  of  a  bond,  etc.,  may  sound  in  uncertain  damages.  So 
may  some  others.  The  various  stipulations  in  the  agreement  are  also  of  vastly 
different  degrees  of  importance  and  damages  for  a  violation  of  some  of  them 
would  be  very  trifling." 


148  THE  LAW  OF  DAMAGES. 

American  Decisions— Liquidated  Damages. 

of  the  contract;  and  it  further  provided  that  when  in  the  opin- 
ion of  the  engineer  the  contract  had  been  fully  performed  on 
the  part  of  the  plaintiff,  and  the  same  was  certified  by  the 
encrineer  in  writing,  together  with  his  estimates  aforesaid,  then 
the  defendants  should  within  twenty  days  after  the  receipt  of 
such  certificate,  pay  to  the  plaintiff  the  sum  which  according 
to  the  contract  was  due,  it  was  held,  that  the  ten  per  cent 
reserved  should  be  treated  as  a  penalty,  securing  the  damages 
actually  sustained,  and  not  as  liquidated  damages." 

§  147.  American  Decisions  Regarding  the  sum 
named  as  Liquidated  Damages.— In  a  recent  case  in  Mas- 
sachusetts, in  an  action  on  a  bond  for  the  payment  of  $1,000, 
"as  liquidated  damages,"  given  by  a  lessee  to  the  lessor  of  a 
stable,  and  conditioned  that  the  lessee  should  keep  it  in  a  cer- 
tain satisfactory  manner,  and  at  the  end  of  the  term  surren- 
der "  said  demised  premises  and  good-will  in  as  good  repute 
and  run  of  custom  as  now  thereto  pertain; "  it  was  held,  that 
the  sum  named  was  to  be  considered  liquidated  damages  and 
not  a  penalty." 

So,  where  one  agrees  in  writing  to  pay  a  certain  sum  as 
compensation  in  case  he  fails  to  perform  the  obligations  of  a 
previous  contract,  at  the  time  specified  therein,  such  sum  if 
not  excessive,  will  be  regarded  as  liquidated  damages  and  not 
a  penalty." 

So,  where  a  note  is  payable  at  a  specified  day  for  a  certain 
sum,  but  which  by  its  terms  may  be  discharged  by  the  pay- 
ment of  a  less  sum  at  an  earlier  day,  the  greater  sum  is  not  in 
the  nature  of  a  penalty,  but  is  the  debt  actually  due,  and  is 


'7  Jemison  v.  Grey,  29  la.,  537.    See  also,  Hise  v.  Foster,  17  la.,  23. 
'8  Leary  v.  Laflin,  101  Mass.,  334.    See,  also,  Dakin  v.  Williams,  19  Wend., 
447;  Hasbrouck  v.  Tappen,  15  Johns.,  200;  Mead  v.  Wheeler,  13  N.  H.,  351. 
'9  Hardee  v.  Howard,  33  Geo.,  533;  Sutton  v.  Howard,  Id.,  536. 


EFFECT  OF  STIPULATIONS.  149 


Where  Price  of  Propeity  is  Fixed. 


recoverable  if  the  less  sum  be  not  paid  according  to  the  terms 
of  the  note."" 

§  148.    Where   the   Price  of  Property  is  Fixed.— 

AVhere  the  parties  fix  a  price  on  property  to  be  delivered,  that 
price  and  not  a  quantum  valebat^  is  usually  the  measure  of 
damages.     Thus,  where  there  was  an  agreement  to  deliver 

=0  Corley  v.  Carter,  23  Ala.,  612.  In  Dakin  v.  Williams,  cited  above,  the 
parties  executed  under  seal  an  instrument  in  writing  whereby  the  defendant, 
in  consideration  of  $3,500  to  be  paid  to  liim  sold  and  transferred  to  the  plain- 
tiffs a  newspaper  estabhshment,  and  all  his  interest  in  the  subscriptions,  good 
will  and  patronage  of  the  paper,  and  the  defendants  covenanted  that  they 
would  not  estabhsh,  set  up,  or  commence  the  publishmg  of  any  paper  in  the 
village  of  Utica  or  county  of  Oneida,  during  the  time  that  the  plaintiffs 
should  continue  to  there  pubHsh  any  paper.  And  the  defendants  obUgated 
and  bound  themselves  to  the  faithful  performance  of  their  contract  in  the  sum 
of  $3,000,  in  the  following  terms :  "  It  is  hereby  mutually  and  expressly  agreed 
by,  and  between  the  said  parties  to  these  presents,  that  the  aforesaid  sum  ol 
$3,000  shall  be  and  hereby  is  fixed  and  settled,  as  Uquidated  damages,  and 
not  as  a  penal  sum,  for  any  violation  of  the  preceding  covenant,  or  any  of  its 
tenns  or  conditions."  The  action  was  brought  against  the  defendants  for 
printing  another  paper  in  the  village  of  Utica,  claiming  the  $3,000  as  Uqui- 
dated damages. 

Chief  Justice  Nelson,  in  deUvering  the  opinion  of  the  Supreme  Court  of 
New  York,  in  the  case,  after  referring  to  many  English  and  American  cases 
relating  to  the  question,  remarks  as  follows:  "  From  a  critical  examination  of 
all  these  cases,  and  others  that  might  be  referred  to,  it  will  be  found  that  the 
business  of  the  court,  in  construing  this  clause  of  the  agreement,  as  in  respect 
to  every  other  clause  thereof,  is  to  inquire  after  the  meaning  and  intent  of  the 
parties,  and  when  that  is  clearly  ascertained  from  the  terms  and  language 
used,  it  must  be  carried  mto  effect.  A  court  of  law  possesses  no  dispensing 
powers,  it  cannot  inquire  whether  the  parties  have  acted  wisely  or  rashly,  in 
respect  to  any  stipulation  they  may  have  thought  proper  to  introduce  mto  their 
agreements.  If  they  are  competent  to  contract  within  the  prudential  rules 
the  law  has  fixed  as  to  parties,  and  there  has  been  no  fraud,  circumvention  or 
illegality  in  the  case,  the  court  is  bound  to  enforce  the  agreement. 

Men  may  enter  into  improvident  contracts  where  the  advantage  is  know- 
ingly and  strikingly  against  them,  they  may  also  expend  their  property  upon 
idle  or  worthless  objects,  or  give  it  away  if  they  please  without  an  equivalent 
in  spite  of  the  powers  or  interference  of  the  court,  and  it  is  difficult  to  see  why 
they  may  not  fix  for  themselves  by  agreement  in  advance,  a  measure  of  com- 
pensation, however  extravagant  it  may  be,  for  a  violation  of  their  covenant, 
(they  surely  may  after  it  has  accrued)  without  the  intervention  of  a  court  or 
juiy.    Can  it  be  an  exception  to  their  power  to  bind  themselves  by  lawful 


160  THE  LAW  OF  DAMAGES. 


Damages  can  never  Exceed  Liquidated  Suin-Cannot  Exceed  Penalty. 


100  bushels  of  corn  on  a  certain  day,  and  the  agreement  con- 
tained the  clause,  "this  corn  is  estimated  at  twenty  dollars;" 
it  was  held  that  the  damages  should  be  assessed  at  the  sum 
named  in  the  agreemejit,  and  not  at  the  value  of  the  corn  on 

sucli  day."' 

§  149.  Damages  can  never  Exceed  the  Liquidated 
Sum. — The  question  whether  the  sum  designated  in  the  con- 
tract to  secure  its  fulfilment,  is  a  penalty  or  liquidated  dam- 
ages, is  frequently  a  matter  of  interest  to  the  parties.  If  it 
is  regarded  as  a  penalty,  the  party  injured  by  the  breach  may 
recover  his  actual  damages,  sometimes  extending  even  beyond 
the  sum  named,  as  we  shall  hereafter  notice;  if,  as  liquidated 
damages,  the  right  to  recover  is  limited  in  all  cases  to  the 
amount  designated,  and  is  conclusive  upon  both  parties. 

§  150.    Cannot  (jlenerally  Exceed  the  Penalty.— It  is 

the  generally  received  doctrine  that  the  recovery  of  damages 
cannot  exceed  the  penalty  named  in  the  contract  but  tliis 
rule  is  not  a])plicable  in  all  cases." 

"The  American  rule,"  says  Mr.  Sedgwick,  "to  be  deduced 
from  all  the  cases,  seems  to  be  that,  against  a  surety  in  debt 
on  hond,  nothing  shall  be  recovered  beyond  the  penalty;  that 
against  the  principle,  in  that  form  of  action,  interest  may  be 

contract?  We  suppose  not,  and  re^mrding  the  intent  of  the  parties,  it  is  not 
to  be  doubted  but  that  the  sum  of  $3,000  was  fixed  upon  by  them  '  mutually 
and  expressly,'  as  they  say,  '  as  the  measure  of  damages  for  a  violation  of  the 
covenant  or  any  of  its  terms  or  conditions.'  If  it  be  said  that  the  measure  is 
a  hard  one,  it  may  be  replied,  that  the  defendants  should  not  have  stipulated 
for  it,  or  having  been  thus  indiscreet  they  should  have  sought  the  only  exemp- 
tion which  was  still  within  their  power,  namely  the  faithful  fulfillment  of 
their  agreement." 

21  Hise  V.  Foster,  17  la.,  23.  See,  also,  Springdale,  etc.,  v.  Smith,  24  111., 
480;  Ii-win  v.  Tanner,  1  Mo.,  210;  Mott  v.  Mott,  11  Barb.  (N.  Y.),  127; 
Holmes  v.  Holmes,  12  Id.,  137;  Zachary  v.  Swanger,  1  Oreg.,  92. 

»  Gower  V.  Carter,  8  la.,  244;  Sweem  v.  Steele,  5  Id.,  352;  10  Id.,  374, 
where  it  was  held  that  in  the  absence  of  bad  faith,  fraud  or  willfully  cxilpa- 
ble  neglect,  a  recovery  beyond  the  penalty  of.  the  bond  ought  not  to  be  had. 
See,  also.  Main  v.  Kmg,  10  Barb.  (N.  Y.),  59. 


EFFECT  OF  STIPULATIONS.  151 


Cannot  Generally  Exceed  Penalty. 


recovered  beyond  the  j^enalty;  while  in  England,  the  penalty 
appears  in  all  cases,  except  perhaps  in  equity,  to  be  the 
absolute  limit.  But  in  neither  country  can  damages  in  gross 
be  recovered  against  principal  or  surety  beyond  the  penalty."  " 

In  Martin  v.  Taijloi\  Justice  Washington  remarked  : 
''  Where  there  is  a  penalty  in  an  agreement  under  seal,  the 
party  injured  mav  sue  at  common  law  for  the  whole  penalty 
and  must  be  satisfied  with  it;  or  he  may  bring  covenant  and 
recover  in  damages  more  or  less  than  the  penalty."" 

§  151.  In  an  action  on  a  bond,  wherein  the  obligor  bound 
himself  to  the  plaintiif  in  the  sum  of  $100,  to  be  void  on 
condition  that  he  would,  at  the  earliest  practical  period,  pro- 
cure a  deed  of  conveyance  of  certain  lands,  to  be  made  to  the 
plaintiff,  of  much  greater  value  than  the  amount  of  the 
penalty,  the  jury  found  a  verdict  for  $224,  that  being  the 
average  value  of  the  land  as  testified  to  by  the  witnesses,  and 
a  judgment  was  rendered  for  that  amount.  On  the  trial  the 
defendant  requested  the  court  to  instruct  the  jury:  "That 
the  jury  cannot  iiud  for  the  plaintiff  a  greater  amount  than 
that  specified  in  the  bond  given  for,  or  to  secure,  a  deed  of  the 

^  Sedg.  on  Dam.,  425.  See,  also,  Frazer  v.  Little,  13  Mich.,  195,  where 
on  a  replevin  bond  it  was  held  no  recoverj'  could  be  had  exceeding  the  penalty 
of  tlie  bond.  But  after  the  default  of  a  surety  in  a  bond  for  the  payment  ol 
money,  mterest  may  be  recovered  against  him  with  the  principal,  although 
it  exceed  the  penalty.    Brainard  v.  Jones,  18  N.  Y..  35. 

»♦  1  Wash.  C.  C.  R..  1.  And  it  has  been  questioned  whether  in  an  action  of 
debt  on  bond,  the  damages  can  be  carried  beyond  the  penalty.  Byrd  v.  The 
State,  2  Barb.  (Ark.),  175;  Tice  v.  Turrantine,  13  Ired.  (N.  C.)L.,  212;  Sedg. 
on  Dam..  525.  It  has  also  been  doubted,  if  covenant  can  be  maintained  upon 
a  common  bond,  upon  an  implied  promise  contained  in  the  conditions;  and  if 
so,  whether  damages  can  be  recovered  beyond  the  penalty.  Sedg.  on  Dam., 
425.  Mr.  Sedgwick  incUnes  to  the  opinion  that  there  is  no  implied  agree- 
ment in  such  cases.  But  see,  contrary.  Clark  v.  Bush.  3  Cow.,  151.  See, 
also,  English  case  of  Wilde  v.  Clarkson,  6  T.  R.,  303,  where  Ld.  Kenyon, 
i-eferring  to  a  contrary  decision,  said:  "  I  cannot  accede  to  the  authority  of 
the  case.  According  to  that,  an  obUgor  who  became  bound  in  a  penalty  of 
£1.000,  conditioned  to  indemnifj-  the  obUgee.  may  be  called  upon  to  pay 
£10,000,  or  any  other  sum,  however  enormous." 


152  THE  LAW  OF  DAMAGES. 


Cannot  Generally  Exceed  Penalty. 


land."  This  was  refused.  On  appeal,  the  court  saj:  "The 
second  instruction  asked  by  the  defendant,  that  the  plaintiff 
could  not  recover  beyond  the  penalty  of  the  bond,  involves 
the  question  whether  the  plaintiff  may  sue  in  covenant  on  the 
condition  of  the  bond.  If  he  may  thus  sue,  we  understand  all 
the  books  which  treat  of  damages  recoverable  on  bonds  and 
penal  obligations  to  mean  that,  he  may  recover  without 
respect  to  the  penalty.  And  after  a  pretty  full  examination 
of  the  subject,  yet  with  some  hesitation  on  the  part  of  one  of 
the  court,  it  is  our  opinion  that  an  action  as  for  covenant 
broken,  will  lie  upon  a  penal  bond  of  the  nature  of  the  one 
before  us.  *  *  •'«•  The  distinction  to  be  made,  is  between 
covenant  and  the  action  of  debt  on  the  bond,  making  use  of 
the  former  names  of  actions.  In  the  latter,  or  an  action  for 
the  penalty  specifically,  or  on  the  penal  part  of  the  bond, 
the  penalty  is  the  limit  of  recovery."  " 

§  152.  So,  where  an  action  was  brought  on  a  contract, 
whereby  the  plaintiff  agreed  to  sell,  and  the  defendant  to  pur- 
chase, a  stock  of  hardware.  The  property  was  to  be  inven- 
toried, and  the  defendant  to  pay  the  original  cost  and  the  cost 
of  transportation,  in  four  equal  installments,  due  in  six,  nine, 
twelve,  and  eighteen  months,  with  ten  per  cent  interest;  and 
for  the  performance  of  said  contract,  the  parties  bound  them- 
selves, each  to  the  other,  in  the  penal  sum  of  five  hundred 
dollars,  as  fixed  damages. 

The  plaintiff  averred  a  full  performance  on  his  part,  and 
claimed  $1,000  damages  for  the  non-performance  of  the  con- 
tract, on  the  part  of  the  defendant,  in  refusing  to  receive  said 
stock  or  execute  the  notes,  and  for  entirely  disregarding  said 
contract  on  his  part.  Wright,  J.,  said:  "Defendant  admits 
that  the  $500,  mentioned  in  the  contract,  is  not  to  be  treated 
as  liquidated  damages,  but  as  a  penalty.  This  granted,  then 
how  can  we  know  $1,000  is  more   than  the  damages  actually 

'5  Sweem  v.  Steele,  5  la.,  354.     See,  also,  Foley  v.  McKeegan,  4  la.,  1. 


EFFECT  OF  STIPULATIONS.  153 

Wnere  Amount  due  is  Certain— Usury— Propositions  Deducible,  etc. 

sustained  by  the  plaintiff.  There  is  nothing  in  the  case  to 
negative  the  position  that  he  has  been  injured  to  that 
amount."  ^° 

We  shall  have  occasion  to  consider  the  subject  of  damages 
on  common,  statutory,  and  official  bonds,  more  fully  here- 
after." 

§  153.    Where  the  Amount  Due  is  Certain— Usury.— 

The  doctrine  of  liquidated  damages,  is  not  applicable  to  agree- 
ments for  the  payment  of  money.  The  amount  due,  and 
interest,  is  the  true  measure  of  damages  in  such  cases.  And 
if,  from  the  nature  of  the  contract,  it  appears  that  the  actual 
damages  may  be  accurately  estimated  by  computation,  and 
are  much  less  than  the  sum  stipulated,  the  stipulated  amount 
will  be  considered  a  penalty."  « 

Kor  can  the  parties  stipulate  for  liquidated  damages,  so  as 
to  evade  the  provisions  of  the  law  which  establish  the  rate  of 
interest." 

§  154.    Propositions  Deducible  from  the  Decisions.— 

The  sum  expressed  should  be  treated  as  a  penalty: 

1.  Where  a  small  sum  of  money  is  secured  by  a  large  one. 

2.  Where  it  is  expressed  to  secure  a  certain  sum  of  money, 
or  a  sum  with  interest,  exceeding  the  legal  rate. 

=6  Lord  V.  Gaddis,  6  la.,  67.    See,  also,  2  Gr.  Ev.,  §  263. 

*7  See,  2)ost,  Chap.  18. 

»8  Fitzpatrick  v.  Cottingham,  14  Wis.,  219;  Warwick  v.  Chase,  23  Md., 
154;  Watts  V.  Sheppard,  2  Ala.,  425;  Berry  v.  Wisdom,  3  Ohio  St.,  241 
Gray  v.  Crosby,  18  John.,   219;  Halderman  v.  Jennings,  14   Ark.,  329 
Griffin  v.   Creditors,   6  Rob.  (La.),  216;  Compton  v.  Compton,  5  La.,  618 
Bright  V.  Rowland,  3  How.  (Miss.),  898;  Hughs  v.  Fisher,  Walk.  (Miss.), 
616. 

=9  Gower  v.  Carter,  3  la.,  244;  Clark  v.  Kay,  26  Geo.,  403;  Brown  v. 
Maulsby,  17  Ind.,  10;  Mason  v.  Callender,  2  Minn..  350;  Daniels  v.  Ward, 
4  Id.,  168;  Brewster  v.  Wakefield,  22  How.,  118;  Robinson  v.  Kinlay,  2 
Kans.,  184.  See,  also,  Wyman  v.  Cochran,  35  111.,  152;  Beckwith  v.  The 
Trustees, etc.,  R.  Co.,  29  Conn.,  268;  Esmond  v.  Van  Benschoten,  12  Barb., 
366;  Beale  v.  Hayes,  5  Sandf.,  640. 


154  THE  LAW  OF  DAMAGES. 

When  Tieated  as  Liquidated  Damages— Rules  of  Construction. 

3.  Where  it  is  doubtful  whether  the  parties  intended  the 
specified  sum  as  a  "penalty,"  or  "liquidated  damages." 

4.  Where  the  agreement  contains  stipulations  or  covenants 
for  the  performance  of  several  things  of  varying  degrees  of 
importance,  and  a  sum  is  specified  in  general  terms  to  be  paid 
on  a  breach  of  the  contract;  and  even  though  it  be  designated 
as  "damages,"  or  "a  fixed  amount,"  or  "  specified  damages," 
or  "  liquidated  damages." 

5.  Where  the  payment  of  the  sum  named  would  be  mani- 
festly unjust  and  oppressive,  and  enable  the  parties  to  evade 
the  laws. 

§  155.    When    Treated  as    Liquidated    Damages.— 

The  sum  expressed  will  be  treated  as  liquidated  damages: 

1.  Where  the^  agreement  is  in  the  alternative,  to  do  some 
particular  thing  or  pay  a  particular  sum  of  money,  unless  it 
shall  appear  unconscionable. 

2.  Where  the  actual  damages  will  be  difiicult  or  impossi- 
ble of  ascertainment;  especially,  where  the  sum  is  not  so 
unreasonably  large  as  to  induce  the  presumption  that  the  parties 
did  not  contemplate  its  payment.^" 

§  156.  Rules  of  Construction.— 1.  Whether  the  sum 
specified  in  a  contract  shall  be  considered  as  a  penalty  or  liqui- 

30 See  able  opinion  of  Collier,  C.  J.,  in  Watts  v.  Sheppard,  2  Ala.  (N.  S.), 
426. 

In  addition  to  the  cases  already  cited,  the  sum  designated  was  held  to  be 
liquidated  damages  in  the  following  cases  in  different  States : 

California. — Fish  v.  Fowler,  10  Cal.,  512.  On  a  contract  to  go  into  the 
butchering  business,  etc.,  Streeter  v.  Rush,  25  Cal.,  67;  California,  etc.,  Co. 
V.  Wright,  6  Id.,  258;  Lighter  v.  Menzel,  35  Id.,  452. 

Arkansas. — Williams  v.  Green,  14  Ark.,  315. 

Connecticut. — Tingley  v.  Cutler,  7  Conn.,  295. 

Illinois.— ^miih  v.  Whitaker,  23  lU,,  367. 

Jwrfmna.— Duffy  v.  Shockey,  11  Ind.,  70;  Miller  v.  Elliott,  1  Id.,  484. 

Maine. — Dwinel  v.  Brown,  54  Me.,  468;  Gammon  v.  Howe,  14  Id.,  250. 

Massachusetts. — Pierce  v.  Fuller,  8  Mass.,  223;  Perkins  v.  Lyman,  11  Id., 
76;  Curtis  v.  Brewer,  17  Pick.,  513;  Hodges  v.  King,  7.JV[et.,  583;  Leland  v. 


EFFECT  OF  STIPULATIONS.  155 


Rules  of  Construction. 


dated  damages,  is  a  question  of  construction,  and  althougli  the 
language  used  in  the  writing  is  the  principal  guide,  the  court 
may  be  aided  by  the  subject  matter  of  the  contract,  the  situa- 
tion of  the  parties,  the  usages  to  which  they  may  be  supposed 
to  refer,  and  by  a  consideration  of  the  question  whether  there 
is  one  or  several  stipulations  of  varying  degrees  of  import- 
ance, or  whether  the  damages  are  easy  or  difficult  of  ascer- 
tainment, or  whether  the  sum  designated  is  reasonable  or 
disproportionate  to  the  actual  damages  sustained. 

2.  The  name  given  to  the  sum  designated,  though  entitled 
to  some  weight,  especially  in  doubtful  cases  of  construction, 
will  not  conclusively  determine  the  construction  in  this  respect, 
which  should  be  put  upon  the  instrument.  And  although  the 
parties  may  designate  it  "  penalty,"  or  "  stated  damages,"  or 
"  liquidated  damages,  and  not  a  penalty,"  the  court  will  treat 


Stone,  10  Mass.,  462;  Merrill  v.  Men-ill,  15  Id.,  488;  Howard  v.  Bowers,  23 
Pick.,  455;  Gushing  v.  Drew,  97  Mass.,  445;  Hall  v.  Cowley,  5  Allen  (Mass.), 
304. 

New  For^•.— Bagley  v.  Peddie,  16  N.  Y.,  469;  WiUiams  v.  Dakin,  22 
Wend.,  201;  Nobles  v.  Bates,  7  Cow.,  307;  Cotheal  v.  Talmage,  9  N.  Y., 
551;  Smith  v.  Smith,  4  Wend.,  468;  Knapp  v.  Maltby,  13  Wend.,  587;  Has- 
brouck  V.  Tappen,  15  .Johns.,  200;  Pearson  v.  Williams,  26  Wend.,  630;  Mott 
V.  Mott,  11  Barb.,  127. 

In  the  following  cases  the  sum  designated,  was  treated  as  a  penalty: 
Ricketson  v.  Richardson,  19  Cal.,  330;  People  v.  Love,  19  Id.,  676;  Nash  v. 
Hermosilla,  9  Id.,  584;  Hamilton  v.  Overton,  6  Blackf.,  206;  Carpenter  v. 
Lockhart,  1  Ind.,  434;  Lord  v.  Gaddis,  9  la.,  265;  Daily  v.  Litchfield,  10 
Mich.,  29;  Jaquith  v.  Hudson,  5  Mich.,  123;  Davis  v.  Freeman,  10  Id.,  188; 
Hammer  v.  Breidenbach,  31  Mo.,  49;  Moore  v.  Platte  County,  8  Mo.,  467; 
Richardson  v.  EcUck,  17  Barb.,  260;  Cotheal  v.  Talmage,  9  N.  Y.,  551;  Den- 
nis V.  Cummins,  3  Johns.  Cas.,  297;  Jackson  v.  Baker,  2  Edw.,  471;  Lamp- 
man  V.  Cochran,  16  N.  Y.,  275;  Spencer  v.  Tilden,  5  Cow.,  144,  ShieU  v. 
McNite,  9  Paige,  101;  Hoag  v.  McGinnis,  22  Wend..  163;  Fish  v.  Gray,  11 
Allen,  (Mass.),  22;  Thoroughgood  v.  Walker,  2  Jones,  (N.  C),  15;  Burrge 
V.  Crump,  3  Jones,  (N.  C),  330. 

It  is  competent  to  fix  the  amount  of  damages,  in  order  to  avoid  difficulty. 
Bingham  v.  Richardson,  1  Winst  (N.  C),  217;  Carey  v.  Laer,  7  Pa.  St.,  470; 
Shreve  v.  Brereton,  51  Pa.  St.,  175;  Smith  v.  Wainwright,  24  Vt.,  97;  Laun- 
benheimer  v.  Mann,  19  Wis.,  519. 


156  THE  LAW  OF  DAMAGES. 


Kules  of  Construction. 


the  same  as  one  or  the  other,  according  to  the  intention 
gathered  from  the  nature,  terms,  and  character  of  the  instru- 
ment—the subject  matter  of  the  stipulations,  and  the  circum- 
stances of  the  case,  guided  by  principles  of  justice  and 
equity. 


CONTRIBUTORY  NEGLIGENCE.  15^ 


Contribvitory  Negligence. 


CHAPTER  X. 


CONTRIBUTORY  NEGLIGENCE. 

Section  167.    The  Plaintiff  can  derive  no  Benefit  from  his  own  Wrong. 

168.  Application  in  cases  of  Negligence. 

169.  "Where  the  Injury  is  Aggravated  by  want  of  Subsequent  Care. 

170.  "Where  the  Defendant  could  have  Avoided  the  result  of  the 

Plaintiff's  Negligence. 

173,  Instances  of  the  Application  of  the  Principle. 

175.  Contributory  Negligence— Cases  of. 

177.  Other  cases  of  Negligence,  per  se. 

178.  Instructions— Erroneous— Correct. 

179.  Ordinary  Care. 

180.  In  case  of  Tire  caused  by  Negligence. 

181.  Other  Instances  of  Negligence. 

182.  Negligence  not  Imputed  in  the  Act  of  Saving  Life. 

183.  "Where  the  Injury  Cannot  be  Apportioned. 

184.  Limits  of  the  Kule  in  case  of  Contributory  Negligence. 

185.  Knowledge  by  Servants  of   Defects  Causing  them  Injury— 

"When  Contributory  Negligence. 

186.  "Whether  the  Question  is  one  of  Law  or  of  Fact. 

188.  The  Question,  in  General,  one  for  the  Jury. 

189.  Burden  of  Proof. 

191.  Presumption  from  the  Instinct  of  Self-Preservation. 

192.  "Where  the  Injured  Person  is  a  Child. 

193.  "Where  an  Infant  is  Incapable  of  Judgment. 

194.  Negligence  of  Parent  no  Defense  to  Action  by  the  Infant. 

195.  Distinction  where  the  Action  is  by  the  Parent. 

197.  Question  for  a  Jury. 

198.  Intoxicated  Persons. 

199.  Blind  Persons. 

200.  Persons  Non  Compos  Mentis. 


THE  LAW  OF  DAMAGES. 


Plaintiff  can  Derive  no  Benefit  from  his  own  Wrong— Application,  etc. 


§  167.    The  Plaintiff  can  Derive  no  Benefit  from  his 

own  Wrong.— JVuUtis  commodum  capcre  potest  de  injuria 
sua  propria,  is  a  familiar  maxim  of  the  law,  and  applicable 
where  a  party  materially  contrihntes  to  his  own  injury.  lie 
cannot  recover  for  such  losses  as  result  from  iiis  own,  or  iVoin 
his  own  and  another's  fault.' 

This  doctrine  is  founded  in  the  soundest  ])rinciples  of  justice 
and  equity,  and  is  universally  recognized.  Xo  one  should  be 
permitted  to  take  advantage  of  his  own  wrong,  and,  in  pari 
delicto  potior  est  conditio  defendentis. 

Whether  the  contribution  to  the  injury,  on  the  part  of  the 
plaintiff,  was  willful,  or  merely  the  result  of  his  negligence— 
whether  it  consisted  in  doing  what  he  ought  not  to  have  done, 
or  not  doing  what  he  should  have  done— if  his  negligence,  or 
wrong,  "proximately  contril)Uted  to  produce  the  injury  ot 
which  he  complains,  so  that,  but  for  his  concurring  and 
co-operating  fault,  the  injury  would  not  have  happened  to 
him,"  he  cannot  recover  therefor.' 

As  between  the  parties,  the  injury  must  be  caused  by  the 
defendant's  fault.'  Nor  can  the  ])laintiff  recover  if  the  injury 
is  the  result  of  the  want  of  ordinary  care  on  the  part  of  both, 
or  if,  by  tlie  use  of  ordinary  care,  he  might  have  avoided  the 
injury.'' 

§  168.  Application  in  Cases  of  Negligence —The 
principle  finds  most  usual  application  in  cases  of  negligence, 
where,  practically,  much  difficulty  exists  in  framing  certain 
and  definite  rules   on    the  subject,  and  in  their  application, 

'  Ante.  §  32.  Aurora,  etc.,  R.  Co.  v.  Grimes,  13  111.,  585;  Chicago,  etc., 
R.  Co.  V.  George,  19  Id..  510. 

=»  Shear.  &  Red.  on  Neg.,  §  25,  and  notes. 

3  Spencer  v.  Utica,  etc.,  R.  Co..  5  Barb.  (N.  Y.),  337;  Brown  v.  Maxwell, 
6  Hill.  (N.  Y.).  592;  Grippen  v.  N.  Y.  Central  R.  Co.,  40  N.  Y.,  34;  Bigelow 
V.  Reed,  51  Me.,  325. 

*  Reeves  v.  Delaware,  etc.,  R.  Co.,  30  Pa.  St.,  454;  Duggins  v.  Watson. 

15  Ark.,  118;  Beers  v.  Housatonic  R.  Co.,  19  Conn.,  566;  Beatty  v.  Gilmore, 

16  Pa.  St.,  463. 


CONTRIBUTORY  KEGLIGENCE.  159 


Application  in  Cases  of  Negligence. 


owing,  frequently  to  tlie  complicated  character  of  the  mutual 
negligence  of  the  parties.' 

It  may  be  said  that  the  defendant  is,  in  all  cases,  liable  for 
the  losses  of  which  his  negligence  is  the  primary  and  proxi- 
mate cause;  and,  although  there  may  have  been  negligence 

8  The  proposition  that  a  person  cannot  recover  damages  where,  by  his  own 
negligence,  he  has  exposed  himself  to  injury,  is  sustained  by  the  following 
English  and  American  cases : 

Butterfield  v.  Forrester,  11  East.,  60;  Sill  v.  Brown.  9  C.  &  P.,  601 
Vanderplank  v.  MUler,  1  M.  &.  M.,  169;  Lygo  v.  Newbold,  9  Exch.,  302 
Great  N.  R.  v.  Harrison.  10  Id.,  376;  Caswell  v.  Worth.  5  E.  &  B.,  549 
Griffiths  V.  Gidlow,  3  H.  &  N.,  648;  Kennard  v.  Bui-ton,  25  Me.,  49;  Webb 
V.  Portland  R.  Co.,  57  Id..  117;  State  v.  Manchester  &  L.  R.  Co.,  52  N.  H., 
528;  Robinson  V.  Cone,  22  Vt.,  213;  Gahagan  v.  Boston  &  L.  R.,  1  Allen, 
187;  Adams  v.  Carlisle,  21  Pick,  146;  Garrett  v.  M.  &  L.  R  ,  6  Gray,  64; 
Berge  v.  Gardner,  19  Conn..  507;  Murphy  v.  Dean,  101  Mass.,  455;  Whee- 
lock  V.  Boston  &  A.  R.  Co..  105  Mass.,  403;  Wilds  v.  Hud.  R.  R.,  44  N. 
Y..  430;  Grippen  v.  New  York  C.  R.,  40  Id.,  34;  Silliman  v.  Lewis,  49  Id., 
255;  Blakely  v.  De  Due,  19  Minn.,  187;  111.  Cent.  R.  v.  Baches,  55  111.,  379; 
Pittsburgh  &  F.  W.  R.  v.  Methuen,  21  Ohio  St.,  583;  Moore  v.  Cent.  R.,  4 
Zabr.,  284;  Morris  &  E.  R.  v.  Haslan,  33  N.  J.  (4  Vr.),  147;  New  Jersey 
Ex.  Co.  v.  Nichols,  Id.,  434;  Penn.  R.  Co.  v.  Goodman,  62  Pa.  St..  329; 
Baltimore  &  0.  R.  v.  Fitzpatnck,  35  Md..  32;  Kelly  v.  Hendric,  26  Mich., 
255;  Gay  V.  Winter,  34  Cal.,  153;  Ne^dham  v.  San  Francisco  R.,  37  Id., 
400-,  Baird  v.  Morford,  29  la.,  531;  Wheeler  v.  Westport,  30  Wis..  392; 
Macon  &  West.  R.  Co.  v.  Baber,  42  Geo.,  327;  Morrison  v.  Comehus,  63  N. 
C,  346;  Kahn  v.  Love.  3  0reg.,  206;  Union  Steam,  etc.,  Co.  v.  Nottingham, 
HGratt..  115;  Walsh  v.  Miss.  Val.  Tr.  Co..  52  Mo.,  4:34;  Fleytas  v.  Pon- 
chartrain  R.  Co.,  18  La.  An.,  3:39;  HiU  v.  Opelousas,  etc.,  R.  Co.,  11  Id., 
292;  Knight  V.  Ponchartrain  R..  23  Id.,  462. 

Mr.  Whai-ton,  in  his  Treatise  on  Negligence,  after  stating  the  general 
rule  in  relation  to  contributorj-  negligence,  remarks :  "  The  true  ground  for 
the  doctrine  is  that,  by  the  interposition  of  the  plaintiff's  independent  will, 
the  causal  connection  between  the  defendant's  negligence  and  the  injury 
is  broken.  The  principle,  however,  must  be  accepted,  with  the  following 
qualifications:  There  must  be  a  causal  connection  between  the  plaintiff's 
negligence  and  the  injury.  The  plaintiff,  as  a  rule,  must  be  a  person  to 
whom  the  alleged  contributory  negligence  is  imputable;  excluding,  therefore, 
persons  distracted  by  sudden  ten-or;  persons  of  unsound  mind,  and  drunk- 
ards ;  persons  deprived  of  their  senses ;  and  infants.  If  the  defendant  is  guilty 
of  gross  negligence,  he  cannot  set  up  a  trifling  negligence,  or  inadvertence 
of  the  plaintiff,  as  a  defense."  Whart.  on  Neg.,  §§  300,  301,  and  cases 
cited.    See,  also,  ante,  Chap.  8. 


160  THE  LAW  OF  DAMAGES. 


Injury  Aggravated  by  want  of  Subsequent  Care. 


on  the  part  of  tlie  plaintiff,  yet,  unless  he  might,  by  the  exer- 
cise of  ordinary  care,  have  avoided  the  consequenoes  of  the 
defendant's  negligence,  he  is  entitled  to  recover  the  loss  sus- 
tained thereby.' 

But,  if  by  ordinary  care  he  might  have  avoided  the  conse- 
quences of  the  defendant's  negligence,  he  is  the  cause  of  his 
own  injury." 

§  109.  Whore  the  Injury  is  Affffravatod  by  want  of 
Subsequent  Care. — Where  the  consequences  of  the  defend- 
ant's negligence  have  subsequently  been  aggravated  by  the 
want  of  ordinary  care,  or  by  the  negligence  of  the  plaintiff, 
this  may  go  in  mitigation  of  damages;  but  it  cannot  defeat 
the  plaintiff's  right  to  recover  tor  the  wrongs  for  which  the 
defendant  is  responsible.' 


5  Wilds  V.  Hudson,  etc..  R.  Co.,  24  N.  Y..  4:30;  Thomas  v.  Kenyon.  1 
Daly  (N.  Y.),  132;  TufFv.  Warman,  5  C.  B.  (N.  S.),  573,  affirming  S.  C.  2 
Id.,  740. 

«  Hance  v.  Cayujra.  etc..  R.  Co.,  26  N.  Y.,  428;  Bridge  v.  Grand  J.  R.  Co., 
3Mees.  &  Wels.,  244. 

7  Sherman  v.  Fall  River  Iron  Works.  5  Allen  (Mass.),  213;  Chase  v.  N. 
Y.  Cent.  R.  Co.,  24  Barb.  (N.  Y.),  273;  Wright  v.  111.,  etc.,  Tel.  Co.,  20  Iowa, 
195. 

In  a  recent  action  in  Ohio,  to  recover  of  a  physician  and  surgeon,  damagCB 
for  malpractice  in  treating  a  swollen  and  diseased  foot  and  ankle  of  the 
plaintiff,  one  of  the  questions  presented  for  the  consideration  of  the  Supreme 
Court  of  that  State  was  upon  the  refusal  of  the  court  below  to  instruct  the 
jury  as  requested  by  the  plaintiff,  and  upon  the  instructions  given  in  relation 
to  contributory  negligence;  on  which  subject  there  was  evidence  tending  to 
show  such  negligence  on  the  part  of  the  plaintiff.  The  instructions  to  the 
jury,  requested  by  the  plaintiff,  were  as  follows :  "1.  That  if  they  find  any 
want  of  the  ordinaiy  care,  skill  or  diligence  of  physicians  and  surgeons,  on 
the  part  of  the  defendant,  which  diminished  the  chances  of  the  plaintiff"  's 
recovery,  or  increased  his  suffering,  or  prolonged  his  iUness,  such  want  of 
care,  skill  or  diligence  would  constitute  injury  to  the  plaintiff,  for  which  he 
is  entitled  to  recover.  2.  That  if  they  find  the  plaintiff  retained  the  defend- 
ant as  a  physician  and  surgeon  to  manage,  take  care  of.  and  treat  the 
diseased  and  swollen  foot  and  ankle  of  the  plaintiff,  described  in  the  petition, 
in  a  skillful  and  proper  manner,  and  that  the  defendant  being  so  retained, 


CONTRIBUTORY  NEGLIGENCE.  161 


Where  Defendant  could  have  Avoided  result  o£  Plaintiff's  Negligence. 


§  170.  Where  the  Defendant  could  have  Avoided  the 
Result  of  the  Plaintiff's  Xegligence.-The  plaintiff  can- 
not recover,  notwithstanding  the  negligence  on  the  part  of 
the  defendant,  if  he  has  so  far  contributed  to  the  accident,  by 
the  want  of  ordinary  care,  that  but  for  that,  the  accident 
would  not  have  happened;  but  though  the  plaintiff  has  so  con- 
tributed to  the  accident  he  is  not  disentitled  to  recover  if  the 
defendant,  by  ordinary  care,  could  have  avoided  the  consequen- 
ces of  the  plaintiff's  neglect;  and  when  but  for  the  plaintiff's 


did  professionally,  as  a  surgeon  and  physician,  manage  and  treat  said 
diseased  and  swollen  anide.  and  in  such  management  and  treatment  did  not 
exercise  the  ordinary  care,  skill  and  dihgence  of  surgeons  and  physicians 
in  such  cases,  and  injury  resulted  to  the  plaintiff  from  such  want  of  care, 
skill  and  diligence,  then  and  in  that  case,  the  plaintiff  is  entitled  to  recover  m 
this  axjtion;  "  which  the  court  gave  with  this  modification:  "  If  you  shall  find 
that  the  defendant  directed  the  plaintiff  to  observe  absolute  rest  as  a  part  ot 
the  treatment  to  said  foot,  and  that  direction  was  such  as  a  surgeon  or  phys- 
ician of  ordinary  skill  would  adopt  or  sanction,  and  the  plaintiff  negligently 
failed  to  observe  such  direction,  or  purposely  disobeyed  the  same,  and  that 
such  neglect  or  disobedience  proximately  contributed  to  the  mjunes  of  which 
he  complains,  he  cannot  recover  in  this  action,  although  he  may  prove  that 
the  defendant's  neghgence  and  want  of  skill  also  contributed  to  the 
injury  This  grows  out  of  the  doctrine  that  a  party  who  has  directly, 
by  his  own  negligence  or  disregard  of  duty,  contributed  to  bnng  an  injury 
upon  himself  cannot  hold  other  parties,  who  have  contributed  to  the  same, 
responsible  for  any  part  thereof;  nor  does  it  make  any  cUfference  that  one 
of  the  parties  contributed  in  a  much  greater  degree  than  the  other;  the 
injured  partv  must  not  have  contributed  at  all." 

The  court!  per  Rix,  J.,  on  appeal,  said:  "'We  are  of  opinion  that  the 
court  did  not  err  in  so  modifying  the  instructions  requested  by  the  p  aintifi, 
whether  the  action  be  regarded  as  based  upon  the  imphed  contraet  ot  the 
sur-eon  or  upon  tort.  It  is  a  weU  settled  principle  of  law,  that  a  party  seek- 
ing to  recover  for  an  injury  must  not  have  contributed  to  it  m  any  degree, 
either  by  his  negligence  or  cUsregard  of  duty  imposed  upon  him  by  a  party 
who  by  "his  negligence  or  want  of  care  or  skiU.  may  also  in  some  degree  have 
contributed  to  the  injurj-."     Cent.  L.  J..  1875,  p.  708-Geiselman  v.  Sco  t. 

But  in  the  Ught  of  some  recent  decisions,  the  doctrine  in  this  case  is 
rather  strongly  stated  by  the  learned  judge,  and  perhaps  would  require  some 
modification. 
11 


162  THE  LAW  OF  DAMAGES. 


Where  Defendant  could  have  Avoided  result  of  Plaintll!'s  Negligence. 


iieo-liffence  at  the  time,  lie  mi"rlit  have  escaped   the   conse- 
quences  of  the  defendant's  ne<^ligence,  he  cannot  recover.' 

The  phraseology  used  to  expi-ess  the  doctrine,  varies  witli 
the  different  cases,  though  substantially  tlie  .same.  Thti-, 
Chief  Justice  Lowe,  in  ILth  u  v.  The  Cldcwjo  (&  NortJnoeist- 
ern  Railroad  Company^  after  referring  to  several  authorities, 
remarked  as  follows:  "  The  leading  principle  here  laid  down 
is,  that  the  plaintiff  cannot  recover  for  an  injury  resulting 
from  the  negligence  of  the  defendant,  if,  notwithstanding 
such  negligence,  his  own  want  of  care  and  prudence,  or  that 
of  the  party  injured,  in  any  way  contributed  directly  to  the 
injury.'" 

§  171-  Where  there  has  been  mutual  negligence,  and  the 
negligence  of  each  party  was  a  proximate  cause  of  the 
injury,  no  action  whatever  can  be  sustained.  In  such  a  case 
there  can  be  no  apportionment  of  the  damages,  and  no 
action  can  be  maintained  by  either  party.  And  where  the 
negligence  of  the  plaintiff,  is  proximate  and  that  of  the 
defendant  remote,  or  consists  of  some  other  matter  than  what 
occurred  at  the  time  of  the  injury,  in  such  case  no   action 

8  Scott  V.  Doublin  etc.,  R.  Co.,  11  Irish  Com.  L.  R.,  377.  See,  also,  Don- 
aldson V.  The  Mississippi,  etc.,  R.  Co.,  18  la.,  2S0,  where  Mr.  Justice  Cole 
commends  the  above  rule  as  one  which  has  the  merit  of  much  fairness,  and  as 
a  statement  of  abstract  truths,  whatever  may  be  the  difficulty  of  the  applica- 
tion. McAunickv.  The  Mississippi,  etc.,  R.  Co.  20  la.,  338;  Drake  v.  Mount, 
33  N.  J.  L.  (4  Vr.),  441  (1869);  Griggs  v.  Fleckenstien,  14  Minn.,  81. 

9  Haley  v.  The  Chicago,  etc.,  R.  Co..  21  la.,  15;  which  was  an  action  by 
the  plaintiff 's  intestate  for  wrongful  treatment  of  the  deceased,  and  for  inju- 
ries received  through  negligence,  whereby  the  death  of  the  deceased  was 
occasioned.  It  appeared  that  the  deceased  got  upon  the  cars  after  dark;  that 
he  was  very  drunk;  that  he  did  not  pay  his  fare  when  demanded  by  the  con- 
ductor, and  for  this  reason  he  was  thrown  or  dragged  from  the  train  about  4 
o'clock  A.  M.  Six  hours  or  more  thereafter,  at  a  point  nearly  one-half  mile 
from  the  depot  where  he  had  been  left,  he  was  run  over  by  another  train. 
The  jury  rendered  a  verdict  for  the  plaintiff  for  $1500,  and  the  Supreme 
Court  awarded  a  new  trial.  See  also,  Redfield  on  Railways,  330,  et  seq.; 
Brown  v.  Han.  &  St.  Joe  R.  Co.,  50  Mo.,  461;  Walsh  v.  Miss.  Val.  Trans. 
Co.,  52  Mo..  434. 


CONTRIBUTORY  NEGLIGENCE.  163 

Where  Defendant  could  have  Avoided  result  of  Plaintiff's  Negligence. 

can  be  maintained,  for  the  reason  that  the  immediate  cause  was 
the  act  of  tlic  plaintiff.'" 

But,  where  the  proximate  cause  of  the  loss  was  the  defend- 
ant's fault  or  negligence,  the  plaintitf  may  recover  though 
there  was  nesflijirence  on  his  part  remotely  connected  with  the 
loss." 

And  where  negligence  of  the  defendant  is  the  proximate 
and  that  of  the  plaintiff  the  remote,  the  action  may  well  be 
sustained  although  the  plaintiff  is  not  entirely  without  fault.'^ 

«>  Justice  Isham  in  Trow  v.  The  Vermont,  etc.,  R.  Co.,  24  Vt.,  487. 
See.  also,  Callahan  v.  Warne,  40  Mo..  131;  The  Galena,  Dunleith  &  Minn. 
Pack.  Co.  V.  Vander^ift,  34  Mo.,  55;  Redfield  on  Railways,  330. 

"  The  Vicksburg,  etc.,  R.  Co.  v.  Patton,  31  Miss.,  156.  See,  also,  Ker- 
whacker  v.  The  Cleveland,  etc.,  R.  Co..  3  Ohio  St..  172;  Shaw,  J.,  in  Mar- 
ble V.  Worcester.  4  Gray,  397. 

"  Hill  V.  Warren.  2  Stark,  377;  Monroe  v.  Leech,  7  Met.,  274;  Parker  v. 
Adams,  12  Id.,  415;  Brown  v.  Maxwell,  6  HiU,  592;  Sherman  v.  Western  Stage 
Co.,  24  la.,  515,  which  wa.s  an  action  by  the  husband  to  recover  damages  for  the 
death  of  his  wife,  who  was  a  passenger  on  the  defendant's  stage  and  whose 
death  was  caused  by  drowning  while  being  conveyed  across  a  swollen  stream 
in  a  small  boat,  and  which  was  upset  through  the  want  of  care  and  skill  of 
defendant's  servants,  as  alleged  by  the  plaintiff. 

The  jury  gave  the  plaintiff  a  verdict  for  $><,0<XJ.  On  an  appeal  the  7th  and 
17th  instiiictions  asked  by  the  defendant  on  the  trial,  and  refused  by  the  court, 
were  reviewed.  These  instructions  were  as  follows:  "  7.  That  if  the  conduct 
ornegUgence  of  the  plaintiff's  intestate,  occasioned  or  contributed  directly  to 
the  upsetting  of  the  boat  by  which  the  iiyury  complained  of  resulted  to  her, 
the  plaintiff  cannot  recover  in  this  action."  "17.  If  the  jmy  believe  from 
the  evidence  that  there  has  in  this  case  been  mutual  negUgence  on  the  part 
of  plaintiff's  intestate  and  defendant,  and  the  negligence  of  each  party,  or  of 
the  plaintiff's  intestate  alone,  has  been  the  proximate  or  immediate  cause  of 
the  injurj',  the  plaintiff  cannot  recover." 

Cole,  J.,  in  delivering  the  opinion  of  the  court,  after  referring  to  several 
cases  illustrating  the  doctrine,  remarks:  "  In  the  case  last  cited  it  is  stated  as 
'  a  general  rule  of  law.  that  no  one  can  recover  for  an  injury  of  which  his  ovra 
negligence  was  in  whole  or  in  part  the  proximate  cause.'  The  seventh 
instruction  asked  by  the  defendant  and  refused  by  the  court  contained  this 
general  rule  of  law  in  plain,  comprehensive,  and  straightforward  language. 
*  *  *  See  also  the  seventeenth  instruction  as  to  mutual  neghgence,  which 
clearly  embodies  the  true  and  settled  rule  on  the  subject,  *  *  *  in  my 
opinion  it  was  a  plain  and  palpable  error  to  refuse  to  give  it  to  the  jurj'." 

For  further  illustration  of  the  rule,  see  Tucker  v.  Champlin,  2  Car.  &  K., 


164  THE  LAW  OF  DAMAGES. 

Application  of  the  Principle. 

It  is  difficult  many  times  to  clearly  apprehend  soine  of  the 
fine  distinctions  drawn  in  reference  to  contributory  negligence. 
And  although  many  propositions  in  the  abstract  may  be  cor- 
rect, there  is  much  difficulty  in  their  practical  application." 

§  173.    Instances  of  the  Application  of  the  Principle. 

— Where  a  person  crosses  a  railroad  track,  without  taking  due 
care  to  ascertain  whether  there  is  a  train  approaching,  and  is 

61  Enf?.  Com.  L.,  730;  Catlin  v.  Hill,  65  Eng.  Com.  L.,  (8 Man.  Gran.  &  S.,) 
123;  Nyes  v.  Morristow-n,  1  Vt..  353;  Rathbern  v.  Payne,  19  Wend.,  399; 
Hatfield  v.  Roper,  21  Wend.,  615;  Brou-nwell  v.  Flayler.  5  Hill,  282;  Monger 
V.  The  Tonawanda.  etc.,  R.  Co..  4  N.  Y.,  ;349;  Brand  v.  Schenectady,  etc., 
R.  Co..  8  Barb.,  368;  Clark  v.  Utica.  etc.,  R.  Co.,  13  Id.,  9;  Terry  v.  N.  Y. 
Central  R.  Co.,  22  Id.,  574;  Wilds  v.  Hudson  River  R.  Co.,  24  N.  Y.,  430; 
Bowman  v.  Troy,  etc.,  R.  Co.,  37  Barb.,  516;  Mangum  v.  Brooklyn  R.  Co., 
36  Id.,  230;  Bieseigal  v.  N.  Y.  Cent.  R.  Co.,  m  Id.,  429;  Clark  v.  Eighth 
Av.  R.  Co.,  32  Id.,  657:  Delafield  v.  Union  Ferry  Co..  10  Bosw.  (N.  Y.),  216; 
Clark  V.  Kirwan,  4  E.  D.  Smith,  21;  New  Haven  Steamboat  Co.  v.  Vander- 
bilt,  10  Conn.,  420;  Michigan,  etc.,  R.  Co.  v.  Lahey,  10  Mich.,  193;  West  v. 
Martin,  31  Mo.,  375;  Winship  v.  Enfield,  42  N.  H.,  197;  Drake  v.  Philadel- 
phia, etc.,  R.  Co.,  51  P.  St..  250;  Toledo,  etc.,  R.  Co.  v.  Godard,  25  Ind., 
185;  Callahan  v.  Wame,  40  Mo.,  131. 

'3  In  Illinois  a  doctrine  of  liability  has  been  recognized  based  upon  the 
comparative  negligence  of  the  parties.  Thus,  if  the  plaintiff  is  in  fault,  still 
if.  as  compared  -vvith  the  negligence  of  the  defendant,  he  is  so  much  less  cul- 
pable as  to  incline  the  balance  in  his  favor,  he  may  still  recover.  Chicago, 
etc.,  R.  Co.  V.  Dewey,  26  111.,  255. 

And  where  there  are  faults  on  both  sides,  the  plaintiff  may  sometimes 
recover,  as  where  it  appears  that  his  negligence,  as  compared  with  the  defend- 
ant's, was  slight,  and  that  of  the  defendant  gross.  Chicago,  etc.,  R.  Co.  v. 
Pondrom,  51  111.,  333.  Again  it  has  been  held  that  although  the  plaintiff  may 
be  guilty  of  some  degree  of  negUgence,  yet  if  it  is  slight,  as  compared  with  that 
of  the  defendant,  the  plaintiff  may  recover,  and  this  even  where  the  slight 
negligence  of  the  plaintiff  contributed  to  the  injurj'.  Courson  v.  Ely.  37  111., 
338;  Chicago,  etc.,  R.  Co.  v.  Harris,  54  111.,  528.  But  see  contrary  doctrine 
in  Wnds  V.  The  Hudson  River  R.  Co.,  24  N.  Y.,  430. 

The  subject  of  comparative  and  contributory  neghgence,  presents  the  most 
difficult  questions  for  the  determination  of  courts  and  juries.  And  the 
instructions  of  courts  relating  to  them,  and  as  to  the  proximate  cause,  or  the 
causa  causans  of  the  injury,  and  the  dividing  line  between  proximate  and 
remote  causes,  ordinaiily  convey  to  jurors  no  definite  idea,  and  furnish  them 
no  clear  guide  in  the  discharge  of  their  duty.  These  are  subjects  which  have 
perplexed  metaphysicians  in  all  ages. 


CONTRIBUTORY  NEGLIGENCE.  165 


Application  of  tlie  Principle. 


run  over  by  a  train  coming  upon  him  unawares,  he  is  charge- 
able with  contributive  negligence,  and  damages  are  not  recov- 
erable for  injuries  sustained  thereby." 

§  174.  A  lady  crossed  a  street  railroad  track  leading  a 
child,  and  the  child's  foot  caught  in  a  hole  by  the  track  and 
before  it  could  be  extricated  it  was  run  over  by  a  car.  The 
car  was  going  more  rapidly  than  was  authorized  by  law,  and 
had  a  defective  brake.  There  was  time  to  have  crossed  in 
safety  but  for  the  accident.  It  was  held,  that  it  was  not  a 
case  of  contributive  negligence,  and  that  the  company  were 
liable."  So  the  fact  that  part  of  a  pane  of  glass  was  out  of 
the  window  of  the  plaintiff's  house,  adjoining  the  defendant's 
road  and  that  the  damage  was  caused  by  sparks  blown  through 
the  window  from  defendant's  engine,  which  was  being  run  at 
an  unlawful  speed,  was  held  not  to  constitute  such  contribu- 
tory negligence  as  would  prevent  a  recovery  for  the  damage 

done." 

The  passenger  car  is  usually  the  proper  place  for  passengers 
on  a  railroad  train,  and  if  a  passenger  should  be  injured  by 
reason  of  his  being  in,  or  on  some  other  car,  not  designed  for 
the  use  of  passengers,  and  where  there  would  be  greater  dan- 
ger and  hazard  than  in  the  passenger  car,  it  would  ordinarily 
constitute  contributory  negligence.  But  where  a  passenger  is 
injured  by  a  collision  while  riding  in  a  baggage  car,  if  he  is 

u  Morris,  etc.,  R.  Co.  v.  Haslan,  aS  N.  J.  L.  (4  Vr.),  147;  Langhoff  v.  MH- 
waukee,  etc.,  R.  Co.,  23  Wis.,  4:3.  See  also,  Isbel  v.  Hannibal,  etc.,  R.  Co., 
Supreme  Court  Mo.,  May  Term,  1875. 

IS  Aaron  v.  Second  Avenue  R.  Co.,  2  Daly  (N.  Y.),  127  (1867). 

'6  Martin  v.  Western,  etc.,  R.  Co.,  23  Wis.,  437.  A  person  may  recover  dam- 
ages for  the  ncgUgence  of  a  raibroad  company  in  causing  a  fire,  although  he  has 
not  ploughed  up  stubble  in  an  adjoining  field  nor  taken  other  unusual  means 
to  guard  against  fire.  One  in  the  exercise  of  his  lawful  rights  has  a  right 
to  presume  that  every  other  person  will  perform  his  duty  and  obey  the  law, 
and  it  is  not  contributory  negligence  to  assume  this  fact,  and  to  act  accord- 
ingly. Opinion  by  Dixon,  J.,  in  Kellogg  v.  Chicago,  etc.,  R.  Co.,  26  Wis., 
223. 


1G6  THE  LAW  OF  DAMAGES. 


Contributory  Negligence-Caaes  of. 


there  by  invitation  or  direction  of  the  conductor,  or  if  he  has 
usually  been  permitted  to  ride  there  for  any  reason,  that  is 
sufficient  to  relieve  him  of  the  charge  of  contributory  neg- 
ligence." 

§  176.  Contributory  Ne^liffence— Cases  of.— Where 
an  expressman's  horse  and  wagon  were  left  untied  in  the  street 
while  he  went  to  deliver  a  parcel,  and  there  was  not  room 
between  the  curb-stone  where  the  horse  was  left,  and  the 
defendant's  car  track,  for  the  wagon  to  stand  and  allow  a  car 
to  pass,  and  a  collision,  in  consequence,  ensued;  and  it 
appeared  that  the  horse  was  not  restive  or  of  vicious  habits, 
it  was  held  that  it  was  nut  negligence, ^er  se,  to  leave  him  in 
the  street  untied.'* 

But  where  the  approach  to  a  railroad  was  dangerous,  because 
the  track  could  not  be  seen  beyond  the  point  of  crossing,  and 
the  plaintiff's  intestate  did  not  stop  to  listen  before  he  attempted 
to  cross  the  track,  and  was  killed  in  attempting  to  do  so,  by 
the  defendant's  passenger  locomotive;  it  was  held,  that  the 
deceased  was  guilty  of  negligence,  j>er  se,  and  that  the  ques- 
tion of  contributory  negligence  should  not  have  been  sub- 
mitted to  the  jury.'* 

So  when  a  child  nine  years  old,  jumped  upon  a  properly 
constructed  draw,  from  a  railroad  bridge,  while  the  draw  was 
being  lawfully  closed,  and  was  thereby  injured;  it  was  held 
to  be  so  wanting  in  ordinary  care,  as  to  constitute  contribu- 
tory negligence."" 

'7  O'DonneU  v.  AUegany  Valley  R.  Co.,  59  Pa.  St.,  239. 

x8  Albert  V.  Blecker  Street,  etc..  R.  Co.,  2  Daly  (N.  Y.),  389  (1868). 

X9  Pennsylvania  R.  Co.  v.  Beale,  73  Pa.  St.,  504.  See,  also.  Hanover  R.  R. 
Co  V.  Coyle,  55  Id.,  396;  North  Penn.  R.  Co.  v.  Hietman,  13  Wnght  (0.), 
eO-  Havers  v.  Erie,  etc.,  R.  Co.,  41  N.  Y.,  296;  Alyn  v.  Boston,  etc.,  R.  Co.. 
105  Mass.,  77;  Railway  Co.  v.  Whitton,  13  Wall.  270;  Artz  v.  The  Chicago, 
etc.,  R.  Co.,  34  la.,  153,  where  there  is  a  large  citation  of  authorities. 

"Brown  v.  European,  etc.,  R.  Co.,  58  Me..  384  (1870).  See,  also.  Stout 
V.  Sioux  City  &  Pacific  R.  Co.,  2  Dill.  C.  C,  294. 


CONTRIBUTORY  KEGLIGEKCE.  16T 


other  Cases  of  Negligence,  per  se. 


§  176.  But  no  person  will  be  allowed  to  impute  a  want  of 
care  or  vigilance  to  another  injured  by  his  act,  if  the  want 
of  care  or  vigilance  w^ere  the  consequence  of  an  omission  of 
duty  on  his  part.°' 

Xor  wall  it  relieve  the  wrongdoer  of  liability  for  losses 
sustained  by  another  through  his  negligence,  if  the  latter  is 
even  at  the  time  doing  a  wrong  or  violating  the  law. 

Thus,  where  the  plaintiff  placed  his  horse  and  wagon  in  a 
street,  in  a  city,  transversly  to  the  course  of  the  street,  while 
loading  articles,  in  violation  of  an  ordinance  of  the  city, 
which  permitted  such  articles  to  be  loaded  only  in  vehicles 
placed  lengthwise  with  the  street,  and  as  near  as  possible  to 
the  sidewalk;  and  while  thus  engaged,  his  horse  was  injured 
by  the  negligence  of  the  defendant,  in  driving  his  wagon 
against  it;  it  was  held  that  the  plaintiff  was  not  prevented 
from  recovering  by  the  facts  of  the  case,  if  the  defendant,  by 
the  exercise  of  due  care,  might  have  avoided  the  injury." 

§  177.  Other  Cases  of  Negligence,  per  se.— And  if  a 
footman  crosses  a  street,  where  the  moving  vehicles  are 
numerous,  and  a  collision  with  them  likely  to  occur  and  to  pro- 
duce serious  injury,  without  looking  in  both  directions  to 
ascertain  whether  they  are  approaching,  and  if  so,  their  rate 
of  speed  and  distance,  he  is  chargeable  witli  negligence,  per  se, 
which  will  defeat  a  recovery  for  any  injury  to  which  said  want 
of  care  contributed." 

And  where  a  brakeman,  employed  on  a  freight  train  on  a 
railroad,  was  aware  that  some  bridges  under  which  the  train 
passed  were  too  low  to  admit  of  his  standing  upright  on  the 

"  Morrissey  v.  Wiggrins  Ferry  Co.,  47  Mo.,  521. 

-  Steele  V  Burkhardt,  104  Mass.,  59  (1870).  See,  aJso,  Keams  v.  Snow- 
den,  Id.,  6.3  note,  where  the  plaintiff 's  horse  was  injured  while  standing  in 
the  street,  in  violation  of  an  ordinance  proliibiting  the  standing  of  horses  in 
the  streets  for  more  than  five  minutes  with  no  person  in  charge;  and  where 
the  same  doctrine  was  held. 

»3  Barker  v.  Savage,  45  N.  Y.,  191. 


1G8  THE  LAW  OF  DAMAGES. 

Instructions  to  Jui-y— Cases  Erroneous  and  Correct. 

top  of  the  car,  and  he  had  been  cautioned  in  regard  to  them; 
and  notwithstanding  this,  he  attempted  to  pass  under  a  bridge 
while  seated  upon  the  top  of  a  brake,  which  position  elevated 
him  liiglier  tlian  he  would  have  been,  if  standing  upon  his 
feet,  and  he  was  thereby  killed;  in  an  action  to  recover  dam- 
ages therefor,  it  was  held  that  he  was  guilty  of  contributory 
negligence,  J9t'?*  *<',  and  tluit  tlu'  (•i»ni]);uiy  was  imt  liable." 

But,  where  a  person  was  walking  on  a  railroad  track,  and 
was  killed  by  an  engine  belonging  to  the  defendant,  it  was 
held  that  the  company  was  resj^onsible  in  damages  for  such 
killing,  even  though  the  deceased  was  guilty  of  a  want  of 
care  and  prudence,  provided  the  accident  would  not  have 
ha])])ened  if  the  agents  of  the  defendant  liad  used  ordinary 
prudence  and  care  in  running  the  train  which  caused  the 
death,  and  ordinarv  care  and  i)fudence  in  f'ivinir  reasonal)le 
and  usual  signals  of  its  a])proacli,  and  in  keeping  a  reasonable 
lookout." 

§  178.  Instructions  to  the  Jury— Cases  Erroneous 
and  Correct. — And  where  the  court  charged  the  jury  as 
follows:  "You  will  inquire  whether  the  plaintiff  was  guilty 
of  any  negligence  whatever,  contributing  to  the  injury;  and 
if  you  iind  that  he  was,  you  will  render  a  verdict  for  the 
defendant;"  it  was  held  erroneous,  as  virtually  requiring 
extreme  care  on  the  part  of  the  plaintiff." 

So,  in  an  action  for  an  injur}-  resulting  in  death,  an  instruc- 
tion to  the  jury  as  follows:  "  If  you  are  satisfied  that  such 
conduct  and  action  on  the  part  of  the  deceased,  caused  the 

=4  Devitt  V.  Pacific  R.  Co.,  50  Mo.,  302.  See,  also.  Barton  v.  St.  Louis  & 
Iron  M.  R.  Co.,  52  Mo.,  253. 

=s  Baltimore,  etc.,  R.  Co.  v.  State,  36  Md.,  366.  See,  also,  BrowTi  v.  The 
Hannibal,  St.  Joseph  R.  Co.,  50  Mo.,  461.  an  able  opinion  by  Wagner,  J., 
maintaining  the  right  to  recover  even  by  a  trespasser.  See,  also,  Thompson  v. 
North  Mo.  R.  Co.,  51  Mo.,  190;  Huelsenkamp  v.  Citizens  R.  Co.,  37  Id.,  537; 
Lynch  v.  Nurdin,  1  Aid.  &  El.  (N.  S.),  29;  Burge  v.  Gardiner  19  Conn.,  507; 
Robinson  v.  Cone,  22  Vt.,  213. 

=*  Strader  v.  Marietta,  ete.,  R.  Co.,  2  Cin.  (0.),  268.    - 


CONTRIBUTORY  NEGLIGENCE.  169 

Instructions  to  JU17— Cases  Erroneous  and  Correct. 

accident  and  was  the  occasion  of  the  boat  tipping  and  filling 
with  water,  and  producing  the  injury,  then  the  plaintiff  can- 
not recover,"  was  held  incorrect,  as  it  is  sufficient  if  the  party 
injured  directly  contributes  to  the  injury,  and  "a  party  may 
contribute  to  an  injury  without  causing  it,  or  one  may  con- 
tribute to  a  result,  without  being  tlie  occasion  of  it."  " 

And  where  the  court  charged  the  jury  as  follows:  "If  you 
find  the  defendant  was  guilty  of  negligence,  then  you  will 
next  inquire  whether  the  plaintiff  was  guilty  of  any  negli- 
gence whatever  contributing  to  the  injury,  and  if  you  find  that 
he  was,  tlien  you  will  find  for  the  defendant;"  it  was  held  to 
be  "radically  erroneous."'* 

In  an  action  for  the  death  of  a  person,  the  following  instruc- 
tion was  held  to  present  the  law  of  the  case  fairly  to  the  jury: 
"The  fault  or  negligence  of  the  deceased,  which  will  preclude 
a  recovery  by  the  plaintiff,  if  there  was  mutual  negligence,  is 
not  the  least  degree  of  fault  or  negligence;  but  it  must  be 
such  a  degree  as  amounted  to  the  want  of  ordinary  or  reason- 
able care  on  the  part  of  the  deceased  at  the  time  of  the 
injury.  By  ordiuaay  care  is  meant  that  degree  of  care  which 
may  be  reasonably  expected  of  a  person  in  the  deceased's 
situation. 

Although  the  deceased  may  have  been  guilty  of  misconduct, 
or  negligence,  which  contributed  remotely  to  the  injury,  yet,  if 
the  misconduct,  negligence,  unskillfulness,  or  criminal  intent 
of  the  defendant,  its  agents  or  servants,  was  the  immediate 
cause  of  the  injury,  and  with  the  exercise  of  prudence  and 
care  defendant  might  have  prevented  the  injury,  then  it  is  lia- 
ble."^' 


^  Shearman  v.  The  West.  Stage  Co.,  24  la.,  563. 

=8  Strader  v.  Marrietta,  etc.,  R.  Co.,  2  Cin.,  (0.),  275. 

=9  Liddy  v.  St.  Louis  R.  Co.,  40  Mo.,  511  See  also,  O'Keefe  v.  The  Chi- 
cago, etc.,  R.  Co..  32  la..  468;  Sweeney  v.  Old  Colony,  etc.,  R.  Co.,  10  Allen, 
Mass.,  369;  Ld.  Campbell  in  Davis  v.  Mann.,  10  M.  &  W.,  546;  Sills  v. 
Brown,  9  Car.  &  P.,  601;  Rigby  v.  Hewitt,  5  Exch.,  239. 


170  THE  LAW  OF  DAMAGES. 

Ordinary  Care— Fire  Caused  by  Negligence. 


§  179.  Ordinary  Care.— The  ne«,'ligence  which  will 
defeat  the  plaintiflP's  right  of  recovery  fur  the  defendant's 
negligence,  must  amount  to  a  want  of  ordinary  care.  If  the 
degree  of  neglect  be  less  than  ordinary  neglect,  it  creates  no 
legal  iault,  and  nothing  is  contributory  negligence,  that  is  less 
in  degree  than  culpable  negligence,  though  there  be  negli- 
gence in  fact.  And  culpable  negligence  is  negligence  greater 
in  degree,  however  slight,  than  ordinary  negligence. 

And  ordinary  negligence  is  the  want  of  that  care  whic-ii  men 
ordinarily  exercise  under  all  the  circumstances  and  in  view  of 
the  nature  of  a  given  transaction.  Mere  slight  neglect^  on  the 
part  of  the  plaintiff,  will  not  defeat  his  right  of  action  for 
injuries  caused  by  the  defendant's  neglect.  The  defendant  is 
not  liable  though  he  may  have  been  negligent  to  some  extent, 
if  his  negligence  is  not  greater  than  ordinarily  attends  the 
conduct  of  affairs,  similar  to  those  in  question,  by  persons  of 
ordinary  care  and  prudence.'" 

§  180.    In  case  of  Fire  Caused  by  Negligence.— 

"Where  a  fire,  which  caught  from  a  locomotive,  spread  from  the 
railroad  track  of  the  defendant,  fed  by  prairie  grass,  until  it 
reached  the  hay  stacks  of  the  plaintiff  on  an  open  prairie  a  half 
mile  distant  from  the  place  where  it  started,  it  was  held,  that 
there  was  contributory  negligence  on  the  part  of  the  plaintiff, 
under  the  circumstances,  in  not  plowing  around  the  stacks  to 
protect  them  from  such  fires.*' 

30  Dodge  V.  Burlington,  etc..  R.  Co.,  34  la.,  276;  Marquette  v.  Chicago, 
etc.,  R.  Co.,  33  Id.,  562;  Kesee  v.  Chicago,  etc.,  R.  Co.,  30  Id.,  78;  Shear.  & 
Red.  on  Neg.,  §  32;  Tuff  v.  Warman,  2  C.  B.  (N.  S.),  89;  Bridge  v.  Grand 
June.  R.  Co.,  3  M.  &  W..  244;  C.  C.  R.  R.  Co.  v.  Terry,  8  Ohio  St.,  570; 
Huelsenkamp  v.  Citizens  R.  Co.,  37  Mo.,  537;  Brown  v.  Hannibal  &  St. 
Joseph  R.  Co.,  50  Mo.,  461. 

31  Kesee  v.  Chicago,  etc..  R.  Co.,  30  la.,  78  (1870);  Railroad  v.  Shanfelt, 
47  111.,  497.  But.  see  the  able  opinion  to  the  contrary  in  Kellogg  v.  Chicago, 
etc.,  R.  Co.,  26  Wis.,  223.  See  also,  Peasley  v.  Eastman  R.  Co.,  98  Mass., 
414;  Cook  V.  Champlain,  etc.  R.  Co.,  1  Den.,  9;  Vaughan  v.  Taff,  etc.,  R. 
Co.,  3  Hurl.  &  Nor.,  743;  post,  §§  180,  664. 


CONTKIBUTORY  JN^EGLIGENCE.  171 

other  Instances  of  Negligence— Not  Imputed  to  Person  Saving  Life. 

And  in  aii  action  against  a  railroad  company  for  the  loss  of 
a  house,  alleged  to  have  been  burned  through  their  negli- 
gence, it  was  held,  that  the  company  were  not  liable  for  the 
loss  of  a  package  of  money  in  the  house  at  the  time  of  the 
fire,  but,  through  the  plaintiff's  negligence,  not  removed  there- 
from when  it  might  have  been,  without  any  danger,  after  the 
fire  originated." 

§  181.    Other  Instances  of  Negligence.— And  where  a 

boy,  under  fourteen  years  old,  was  employed  to  attend  a  hemp- 
carding  machine  in  a  cordage  factory,  and  his  exposure  to 
certain  gearing,  in  which  his  hand  was  caught  and  injured, 
was  not  pointed  out  to  him,  the  employers  were  held  liable  for 
the  injury." 

§  182.  Negligence  not  Imputed  to  a  Person  in  the 
act  of  Saving  life. — Where  an  action  was  brought  against 
a  railroad  company  for  injuries  causing  the  death  of  the 
plaintiff's  intestate,  and  it  appeared  that  the  deceased  being 
near  the  defendant's  railroad,  and  seeing  a  little  child  on 
the  track  and  a  train  swiftly  approaching,  so  that  the  child 
unless  rescued  would  be  instantly  crushed,  and  the  deceased 
rushed  upon  the  track  for  the  purpose  of  saving  the  child,  and 
succeeded  in  saving  it,  but  was  himself  run  over  and  killed;  it 
was  held,  that  his  voluntarily  exposing  of  himself  to  danger 
for  that  purpose  was  not,  as  a  matter  of  law,  negligence  on  his 
part,  ])recluding  a  right  of  recovery  therefor,  and  entitling 
the  defendant  to  a  non-suit;  but,  that  the  law  has  so  high  a 
regard  for  human  life  that  it  will  not  impute  negligence  to 
an  effort  to  preserve  it,  unless  made  under  circumstances  con- 
stituting rashness  in  the  judgment  of  prudent  persons;  and 

3=  Toledo,  etc.,  R.  Co.  v.  Pindar,  53  111.,  447  (1870). 

33  Coombs  V.  New  Bedford  Cordage  Co.,  102  Mass.,  572  (1869).  See  also, 
the  same  doctrine  in  Fort  v.  Union  Pac.  R.  Co.,  2  Dill.  C.  C,  259,  and 
affirmed  on  appeal  in  the  S.  C.  U.  S. 


172  THE  LAW  OF  DAMAGES. 

Where  Injury  Cannot  be  Apportioned— Limits  of  the  Rule,  etc, 

that  it  is  for  the  jury  to  say  in  such  cases  whether  the  con- 
duct of  the  party  injured  is    to  be  deemed  rash  and  reckless." 

§  183.    Where  the  Injury  Cannot  be  Apportioned.— 

Although  there  are  cases  where  an  action  may  be  maintained 
against  a  defendant  to  recover  damages,  where  there  was  neg- 
ligence on  the  part  of  both  parties;  yet  in  such  cases  it  must 
appear,  either  that  the  defendant  might,  by  a  reasonable  degree 
of  caution,  have  avoided  the  consequences  of  the  injured  par- 
ty's neglect,  or  that  the  latter  could  not  by  ordinary  care  have 
avoided  the  consequences  of  the  defendant's  negligence.  But 
where  there  is  a  concurrence  of  negligence  of  both,  causing 
the  injury  to  one  of  the  parties,  the  causes  are  co-mingled 
and  are  regarded  as  equally  proximate  to  the  eflfect  produced, 
and  therefore  not  susceptible  of  apportionment." 

§  184.  Limits  of  the  Rule  in  Case  of  Contributory 
Negligence. — To  defeat  an  action  on  the  ground  of  contribu- 
tory negligence,  it  must  be  shown  that  the  negligence  was  on 
the  part  of  the  injured  j^art}'.'" 

Nor,  will  one  person  be  allowed  to  defeat  an  action  for  dam- 
ages, by  imputing  a  want  of  vigilance  to  another  injured  by 
his  act,  if  that  very  want  of  vigilance  was  the  consequence  of 
an  omission  of  duty  on  the  part  of  the  former." 

34Eckert  v.  Long  Island  R.  Co.,  43  N.  Y.,  502  (1871).  See,  also,  You- 
mans  v.  Padden,  1  Mich.  (N.  P.),  127  (1870);  Indianapolis,  etc.,  R.  v. 
Carr,  35  Ind.,  510;  Fink  v.  Potter,  17  lU.,  406;  Stokes  v.  Saltonstall,  13 
Peters,  181;  Buel  v.  N.  Y.  Cent.  R.,31  N.  Y.,  314;  Johnson  v.  W.  C.  &  P. 
R.,  70  Pa.  St.,  357, 

3s  Northern,  etc.,  R.  Co.  v.  State,  31  Md.,  357  (1869).  But,  see  a  recent 
case  in  Illinois,  in  which  it  was  held  that  if  there  has  been  negUgence  in  both 
parties,  still  the  plaintiff  may  recover  where  his  neghgence  is  slight  and  that 
of  defendant  gross  in  comparison.  The  Chic,  B.  &  Q.  R.  Co.  v.  Van  Pat- 
ten, 64  111.,  510.  See,  also,  Chicago  &  A.  R.  R.  Co.  v.  Gretzner,  46  Id.,  75. 
See,  also,  KUne  v.  Cent.  Pacific  R.  Co.,  37  Cal.,  400  (1869);  Trow  v.  The 
Vermont,  etc.,  R.  Co.,  24  Vt.,  495. 

36  Pauhnier  v.  Erie,  etc.,  R.  Co.,  34  N.  J.  L.,  151  (1870).  See,  also,  Griggs 
V.  Fleckenstein,  14  Minn.,  81. 

»  Morrissey  v.  Wiggins  Ferry  Co.,  47  Mo.,  521  (1871). 


COXTPwIBUTORY  NEGLIGENCE.  173 


Limits  of  Rule  in  Case  of  Contributory  Negligence. 

And  where  the  injury  is  the  result  of  the  concurring  acts  of 
two  persons,  a  party  in  fault  is  not  exempted  from  full  liabil- 
ity for  the  injury,  because  the  other  party  may  be  equally 
culpable."' 

38  Ricker  v.  Freeman,  50  N.  H.,  450. 

The  following  additional  authorities  in  the  different  States  relate  to  the 
subject  of  contributoiy  negligence: 

Massachusetts. — Xo  one  can  maintain  an  action  for  a  wrong  where  he  has 
consented  or  materially  contributed  to  the  act  which  occasions  his  loss.  Hor- 
ton  V.  Ipswich,  12  Cush.,  488;  Holly  v.  Boston  Gas  Light  Co.,  8  Gray 
(Mass.),  123;  Parker  v.  Adams,  12  Met.  (Mass.),  415;  Counter  v.  Couch,  8 
Allen,  436  (1864). 

Michigan. — Or  where  the  loss  is  the  result  of  tlje  negligence  of  both  par- 
ties, and  without  intentional  wTong  on  the  part  of  the  defendant.  Williams 
V.  Michigan,  etc.,  R.  Co.,  2  Mich.,  259.  See,  also,  Micliigan,  etc.,  R.  Co.  v. 
Leahey,  10  Id.,  193. 

Minnesota. — Locke  v.  St.  Paul,  etc.,  R.  Co.,  15  Minn.,  350;  Griggs  v. 
rieckenstein,  14  Id.,  57. 

Mississippi.— Bix  v.  Brown,  41  Miss.,  131;  M.  &  C.  R.  Co.  v.  Wliitfield, 

44  Id.,  466. 

Missouri. — Galena,  etc.,  R.  Co.,  v.  Vandergift,  34  Mo.,  55;  Callahan  v. 
Wame,  40  Id.,  131;  Meyer  v.  Pacific,  etc.,  R.  Co.,  Id.,  151.  Unless  the  acts 
of  the  injured  pai-ty  were  the  direct  and  proximate  cause  of  the  injury,  the 
party  occasioning  it  would  not  be  excused.   Kennayde  v.  Pacific,  etc.,  R.  Co., 

45  Mo.,  255.  But  if  the  plaintiff  could  have  avoided  the  injury  by  the  exer- 
cise of  ordinary  care  and  prudence  the  defendant  is  not  Uable.  Walsh  v. 
Mississippi,  etc.,  R.  Co.,  52  Mo.,  434. 

Nete  Hamp)shire. — If  the  defendant's  wrongful  act  was  the  proximate  cause 
of  the  injury  the  defendants  are  liable  although  other  causes,  for  which  the 
plaintiff's  are  not  in  fault,  contributed  to  the  injury.  Hooksett  v.  Amoskeag 
Man.  Co.,  44  N.  H.,  105;  Cowles  v.  Kidder,  24  Id.,  364. 

New  ForA:.— Tonawanda  R.  Co.  v.  Munger,  5  Den.,  255;  4  N.  Y.,  349; 
Cookv.  Champlain.  etc.,  Co.,  1  Den.,  1;  Terry  v.  N.  Y.  Cent.  R.  Co.,  22 
Barb..  574;  Fowler  v.  Dorion,  24  Id.,  384;  Roulston  v.  Clark,  3  E  D.  Smith, 
366;  Morse  v.  Erie  R.  Co.,  65  Barb.  (N.  Y.),  491;  Brown  v.  ElUott.  45 
How.  (N.  Y.),  182. 

TTjsconsm.— Potter  v.  Chicago,  etc.,  R.  Co.,  21  Wis.,  372.  Shght  negli- 
gence on  the  part  of  the  plaintiff,  ^viIl  not  defeat  his  right  of  recovery. 
Dreher  v.  Town  of  Fitchburg,  22  Wis.,  675;  Wheeler  v.  Town  of  Westport, 
30  Id.,  392.  And  negligence,  on  the  part  of  a  party  insured,  vnl\  not  defeat 
the  right  of  recovery  on  the  poHcy  of  insurance  on  his  life.  Schneider  v. 
Provident  Life  Ins.  Co.,  24  Wis.,  28.     See,  also,  Sutton  v.  Town  of  Wauwon- 


174  THE  LAW  OF  DAMAGES. 


Knowledge  by  Servants  of  Defects  Causing  Injury. 


§  185.    Knowledge  by  Servants  of  Defects  Causing 
them  Injury— When  Contributory  Negligence.— Some 

conflict  of  decisions  exist  upon  the  question  wlietlier  tlie  mas- 
ter is  liable  for  injuries  occurring  to  the  servant  through  the 
master's  negligence,  relating  to  the  business  in  which  the  ser- 
vant is  engaged,  or  the  instrumentalities  connected  therewith, 
where  the  servant  lias  knowledge  of  such  neglect  and  defects. 
The  better  opinion  seems  to  be  that  if  a  i)arty  engages  in  a 
business  that  is  hazardous,  or  to  use  instruments  or  machinery 


tosa,  29  Id. ,  21 .  The  question  is  for  the  jury.  Kelly  v.  Town  of  Fon  du  Lac, 
31  Id.,  179.     See,  also,  Valk  v.  Eldred.  23  Id.,  410. 

Connecticut. — It  must  appear  that  there  was  no  concurring  negligence  on 
the  part  of  the  plaintiff  materially  contributing  to,  or  essential  in  producing, 
the  injury.  Park  v.  O'Brien.  23  Conn..  ;34''>;  Neil  v.  Gillett,  Id.,  44;i;  Isbel 
V.  New  York,  etc.,  R.  Co.,  27  Id..  402;  Wdliaras  v.  Clinton,  28  Id.,  266; 
Fox  V.  Glastenburg,  29  Id.,  347. 

If  the  act  was  not  wanton  or  intentional,  and  the  plaintiff  materially  con- 
tributed to  produce  the  result,  the  defendant  will  not  be  liable.  Birge  v. 
Gardner,  19  Conn.,  611;  New  Haven,  etc.,  R.  Co.  v.  Vanderbilt,  16  Id.,  429. 
To  defeat  the  plaintiff's  recovery,  on  the  ground  of  contributory  negligence, 
it  must  amount  to  a  want  of  ordinary  care.  Daley  v.  Norwich,  etc.,  R.  Co., 
26  Conn.,  597;  Fox  v.  Glastenburgh,  29  Id.,  208. 

Illinois. — For  contributoiy  negligence,  per  se,  see,  C.  &  A.  R.  Co.  v. 
Fears,  53  lU.,  115;  lUinois,  etc.,  R.  Co.  v.  Slatton,  54  Id.,  133;  C.  &  A.  R. 
Co.  v.  Murphy,  53  Id.,  336;  C.  &  N.  W.  R.  Co.  v.  Sweeney,  52  Id.,  325. 
The  age  and  discretion  of  the  party  injured,  are  proper  subjects  of  inquiry 
by  the  juiy  in  determining  the  relative  degree  of  care,  or  want  of  care. 
Kerr  V.  Forgue,  54  111.,  482.  Negligence  cannot  be  imputed  to  a  child 
under  five  years  old.     Chicago,  etc.,  R.  Co.  v.  Gregory,  58  III.,  226. 

Indiana.— Ohio,  etc.,  R.  Co.  v.  Gullett,  15  Ind.,  487;  Lofton  v.  Vogles,  17 
Id.,  105;  Toledo,  etc.,  R.  Co.  v.  Thomas,  18  Id.,  215;  Indianapohs,  etc.,  R. 
Co.  v.  Rutherford,  29  Id.,  82;  Newhouse  v.  Miller,  35  Id.,  463. 

Iowa. — The  plaintiff,  claiming  to  recover  for  the  negligent  and  unskillful 
acts  of  another,  must  not  only  show  the  negligence  of  the  defendant,  but, 
also,  that  no  negligence  of  his  own  contributed  to  the  result.  Baird  v.  Mor- 
ford,  29  la.,  531;  Hunt  v.  Chicago,  etc.,  R.  Co.,  25  Id.,  363;  Shearman  v. 
Western  Stage  Co.,  30  Id.,  78;  Dewey  v.  Chicago,  etc.,  R.  Co.,  31  Id.,  373; 
Artz  V.  Chicago,  etc.,  R.  Co.,  34  Id.,  153;  Daggett  v.  The  Illinois,  etc.,  R. 
Co.,  34  Id.,  284. 

Kansas. — It  is  not  necessary  that  the  plaintiff  should  be  free  from  all 
negligence,  in  order  for  him  to  recover.     If  his  negligence  is  slight  and  that 


CONTRIBUTORY  NEGLIGEN"CE.  175 

Knowledge  by  Servants  of  Defects  Causing  Injury. 

that  are  defective,  although  these  facts  may  be  known  to  the 
master,  and  there  is  gross  negligence  in  him  in  this  respect, 
still,  if  the  servant  with  full  knowledge  thereof,  or  after  notice 
of  the  danger  to  which  he  is  thereby  exposed,  continues  in 
the  employment  and  is  thereby  injured,  he  contributes  to  his 
own  injury;  that  the  servant  is  as  much  bound  to  take 
care  of  himself  as  the  master  is  to  take  care  of  him;  and  that 
if  he  possesses  the  knowledge  of  these  matters  he  must  refuse 
the  employment  or  be  held  to  have  assumed  the  risks  incident 


of  the  defendant  gross,  or  if  his  is  remote  and  that  of  the  defendant  proxi- 
mate, he  may  recover.  Union  Pacific  R.  Co.  v.  Rollins,  5  Kans.,  167; 
Caulkins  v.  Mathews,  5  Id.,  191;  and  the  question  is  for  the  jury.  Id. 
When  the  facts  are  agreed  upon,  the  question  of  negligence  is  one  of  law. 
K.  P.  R.  Co.  V.  Butts,  7  Kans.,  308;  Hale  v.  RawUs,  8  Id.,  139.  See,  also, 
Sawyer  v.  Sauer,  10  Id.,  466. 

Pennsylvania. — The  rule  applied  in  Pennsylvania,  where  a  person  hitched 
a  horse  so  that  the  carriage  projected  into  the  road,  and  was  injured  by  a 
wagon  coming  along  unaccompanied  by  the  wagoner.  Stiles  v.  Geesey,  71 
Pa.  St.,  430. 

Vermont. — See  application  of  the  rule  in  a  recent  case,  Lindsey  v.  Dan- 
ville, 45  Vt.,  72. 

0^10. — Pendleton,  etc.,  R.  Co.  v.  Stallman,  22  Ohio  St.,  1. 

English  Cases.— Butterfield  v.  Forester,  11  East.,  60;  Wiggett  v.  Fox.,  36 
Eng.  L.  &  E.,  492;  Tarrant  v.  Webb,  37  Id.,  281;  Degg  v.  Midland  R.  Co., 
40  Id.,  376;  Skipp  v.  Eastern,  etc.,  R.  Co.,  24  Id.,  396;  Hutchinson  v.  RaUr 
way  Co.,  5  Exch.,  343;  Wigmore  v.  Jay,  5  Id.,  354;  Scott  v.  Mayor,  etc.,  38 
Eng.  L.  &  E.,  477;  Mariott  v.  Stanley,  1  M.  &  G.  568. 

And  it  is  usually  required  of  the  plaintiff  to  show  that  he  used  ordinary 
care  to  avoid  the  injury  for  which  he  asks  damages.  See  cases  above  cited. 
Also  see.  Brown  v.  Kendall,  6  Cush.  (Mass.)  292,  (1850);  Wright  v.  Maiden, 
etc.,  R.,  4  Allen  (Mass.),  283  (1862);  where  in  a  suit  by  a  child  the  negli- 
gence of  the  parent,  in  the  care  of  the  child,  was  held  to  be  the  same  as  his 
own  negligence  if  he  had  been  an  adult.  Todd  v.  Old  Colony,  etc.,  R.  Co., 
7  Allen  (Mass.),  207  (1863);  Snow  v.  Housatonic,  etc.,  R.  Co.,  8  Allen,  449, 
where  plaintiff's  acts  in  passing  from  one  car  to  another  when  they  were  in 
rapid  motion  and  by  which  he  received  the  injury,  was  held,  per  se,  contrib- 
utory negligence.  See  also,  Callahan  v.  Bean,  9  Allen,  401  (1864);  Hickey 
V.  Boston,  etc.,  R.  Co.,  14  AUen,  429. 


176  THE  LAW  OF  DAMAGES. 


Knowledge  by  Servants  of  Defects  Causing  Injury. 


to  the  business,  and    cannot    recover   for   injuries  resulting 
therefrom.'" 

The  master  is  not  generally  liable  for  the  risks  incident  to 
the  service  in  which  the  servant  is  engaged;  and  this  doctrine 
is  applicable  to  cases  of  injury  to  servants,  resulting  from  the 
negligence  of  other  servants  in  the  same  general  employment.*' 
But  the  application  of  this  doctrine  has  been  questioned,  in 
cases  where  the  injury  resulted  from  the  negligence  of  a  ser- 
vant occupying  a  higher  position  than  the  one  injured.*'  The 

39  See  opinion  of  Wright,  J.,  in  Greenleaf  v.  111.  Cent.  R.  Co.,  29  la..  U. 
See,  also.  Hutcliinson  v.  Railway  Co.,  5  Exch.,  343;  Illinois,  etc.,  R.  Co.  v. 
JeweU,  46  III..  99;  Frazier  v.  Penn.  R.  Co.,  38  Pa.  St.,  104;  Mad  River,  etc., 
R.  Co.  V.  Barber.  5  Ohio  St.,  541;  McMillan  v.  Saratoga,  etc.,  R.  Co.,  20 
Barb.,  449;  Priestly  v.  Fowler,  3  M.  &  W.,  1;  Sej-mour  v.  Maddox,  5  Eng. 
L.  &  E.,  265;  Harris  v.  Northern,  etc.,  R.  Co.,  20  N.  Y.,  2:3.5;  Alsopv.  Yates, 
2  H.  &  N.,  768;GriiBthsv  Gidlow,  3  Id.,  648;  Pierce  on  Railways,  294;  Shear. 
&  R.  on  Neg.,  §  87,  et  seq.;  2  Pars,  on  Con.,  42;  Hayden  v.  Man.  Co.. 
29  Conn.,  54S;  Hard  v.  Vermont,  etc.,  R.  Co.,  32  Vt.,  473;  Warner  v.  Erie, 
etc.,   R.   Co.,  39  N.   Y.,  468;   Laning   v.   New  York  Cent.    R.    Co.,   49 
N.  Y.,  521;  Buzzel  v.  Laconi  Man.  Co.,  48  Me.,  113;  Fifield  v.  Railroad 
Co.,   42  N.   H.,  225;   Wright  v.   Railroad  Co.,   25  N.   Y.,   562;   lUinois, 
etc.,    R.   Co.  V.    Love,    10    Ind.,    5-54;    Moss    v.    Johnson,   22    111.,   642; 
Loonan  v.  Brockbur}\  28  How.  Pr.,  472;  Hugh  v.  R.  R.  Co.,  6  La.  An.,  495. 
The  doctrine  seems  somewhat  qualified  by  some  of  the  decisions.     See,  Snow 
v.  Housatonic  R.  Co.,  8  Allen,  441;  Fox  v.  Sackett,  10  Allen,  535.     And  it  is 
evident  that  the  doctrine  would  not    apply  where  the  service  had  been 
induced,  entered  upon,  or  continued  by  a  promise  on  the  part  of  the  master 
to  remedy  the  defects  or  remove  the  cause  from  which  the  injur}'  proceeded, 
Greenleaf  v.  Illinois,  etc.,  R.  Co.,  29  la.,  14.     See,  also,  Laning  v.  N.  Y.  C. 
R.  Co.,  49  N.  Y.,  521.     And  it  has  been  held,  that  he  assumes  the  risk  only 
when  he  remains  wdthout  objection  or  protest.    Greenleaf  v.  The  Dubuque  & 
S.  C.  R.  Co.,  .3:3  la.,  52. 

40  lUinois  Central  R.  Co.  v.  Cox,  21  111.,  20;  Hard  v.  Vermont,  etc.,  R.  R. 
Co.  32  Vt.,  473;  Hayden  v.  Smithville  Manf.  Co.,  29  Conn.  548;  Sherman  v. 
Rochester,  etc.,  R.  R.  Co.,  17  N.  Y.,  153;  Davis  v.  Detroit,  etc.,  R.  Co.,  20 
Mich.,  105;  Caldwell  v.  Brown,  53  Pa.  St.,  453;  Sulivan  v.  Railroad  Co.,  11 
la.,  421.  See.  also,  English  cases ;  Barton's  Hill  Coal  Co.  v.  Reid,3Macq.  H.  L., 
266;  Samev.  McGuire,  Id.,  300;  Hutcliinson  v.  Railway  Co.,  5 Exch.,  343;  Mor- 
gan V.  Railway  Co.,  L.  R.,  1  Q.  B..  149;  Brown  v.  Cotton  Co.,  3  H.&N.,  511. 

41  Little  Miami  R.  Co.  v.  Stevens.  20  Ohio,  415;  Cleveland,  etc.,  R.  Co.,  t. 
Keary,  30hioSt.,  201;  or,  where  the  injury  was  occasioned  by  the  neghgence 
of  a  servant  who  was  not  possessed  of  ordinary  skill  or  capacity  in  the  busi- 
ness intrusted  to  him,  Hai-per  v.  The  Indianapolis,  etc.,  R.  Co.,  47  Mo.,  567. 


CONTRIBUTOEY  NEGLIGENCE.  177 

Whether  the  Question  is  one  of  Law  or  Fact. 

general  doctrine,  however,  seems  to  be  established,  even  in 
such  cases,  by  the  decided  weight  of  authority/^ 

§  186.  Whether  the  Question  is  one  of  Law  or  of 
Fact. — The  question  of  negligence,  or  contributory  negligence, 

*=  Abraham  v.  Reynolds,  5  H.  &  N.,  143;  Gallagher  v.  Pifer,  16  C.  B.  N. 
S.,  669;  Wigmore  v.  Jay,  5  Exch.,  354;  Feltham  v.  England  L.  R.,  2  Q.  B., 
83;  Warner  V.  Erie  R.  Co.,  39  N.  Y.,  468;  Coon  v.  SjTacuse,  etc.,  R.  Co.,  5 
N.  Y.,  492;  Chicago,  etc..  R.  Co.  v.  Murphy,  53  111.,  .336;  Columbus,  etc.,  R. 
Co.  V.  Arnold,  31  Ind.,  174;  Hard  v.  Vermont,  etc.,  R.  Co.,  32  Vt.,  473; 
Chicago;  etc.,  R.  Co.  v.  Keefe,  47  111.,  108,  And  it  has  been  claimed  that 
the  same  doctrine  should  extend  to  the  case  of  an  injury  resulting  from  the 
negligence  of  a  servant,  employed  in  the  same  genertd  business  but  in  some 
distinct  branch  of  it,  as  a  carpenter  employed  on  a  building,  injured  by  a 
yard-master  in  making  up  trains,  a  laborer  on  the  track  injured  by  the  neg- 
ligence of  a  conductor  on  a  train.  See  Morgan  v.  Railway  Co.,  L.  R.,  1  Q. 
B.,  149;  Feltham  v.  England,  L.  R..  2  Q.  B.,  33;  Columbus,  etc.,  R.  Co.  v. 
Arnold,  31  Ind.,  174;  Louisville,  etc..  R.  Co.  v.  Cavens,  9  Bush.,  559;  Weger 
V.  Pennsylvania  R.  Co.,  55  Pa.  St.,  460. 

A  master  is  not  generally  liable  for  an  injury,  by  his  servant,  to  the  employes 
of  a  sub-contractor  engaged  on  the  same  -work.  Wiggett  v.  Fox,  36  E.  L.  & 
E.,  486;  s.  c,  11  Exch.,  832.  But  see,  Murry  v.  Currie,  L.  R.  6  C.  P.,  24; 
Forsythe  v.  Hooper,  11  Allen,  419;  Burke  v.  Norwich,  etc.,  R.  Co.,  34  Conn., 
474;  Hunt  v.  Pennsylvania  R.  Co.,  57  Pa.  St.,  475. 

On  this  subject  Judge  Cooley  remarks:  ''The  exceptions  to  the  general 
rule  may  perhaps  be  all  embraced  in  one  general  proposition :  That  if  the 
servant  is  injured  in  consequence  of  the  personal  negligence  of  the  master 
himself,  the  latter  is  responsible  for  the  injury,  on  the  same  general  grounds 
and  for  the  same  reasons  which  would  render  him  liable  for  a  like  negligent 
injury  to  a  stranger. 

"  In  considering  this  proposition,  it  may  be  remarked: 

"1.  That  the  master's  negligence  may  consist  in  subjecting  the  servant  to 
the  dangers  of  unsafe  buildings  or  machinery,  or  to  other  perils  on  his  own 
premises,  which  the  servant  neither  knew  of  nor  had  reason  to  anticipate  or 
to  provide  against  when  he  entered  the  employment,  or  subsequently. 

"  The  general  rule  is,  that  while  the  owner  of  real  estate  is  not  bound  to 
provide  safeguards  for  wrongdoers,  he  is  bound  to  take  care  that  those  who 
come  upon  his  premises  by  liis  express  or  implied  invitation  be  protected 
against  injury  resulting  from  the  unsafe  condition  of  the  premises,  or  from 
other  perils,  the  existence  of  wliich  the  invited  party  had  no  reason  to  look 
for.  Thus,  a  railroad  company  has  been  held  liable  to  one  who  was  invited 
by  a  signal  from  its  flagman  to  cross  its  track,  on  the  supposition  that  it  was 
clear,  and  was  injured  while  so  doing  by  a  passing  train.  So,  a  brewer  was 
held  liable  to  a  customer  who  came  to  do  business  with  liim,  and  fell  through 
an  unguarded  trap  door.  *  *  *  (Citing  Sweeney  v.  Old  Colony,  etc.,  R. 
12 


178  THE  LAW  OF  DAMAGES. 


Whether  the  Question  Is  one  of  Law  or  Fact. 


is  usually  one  of  fact  f(jr  the  jury;  but  where  it  is  such  that 
the  general  knowledge  and  experience  of  mankind  will  at 
once  condemn  it  as  culpable  negligence,  it  is  held  to  be  a 
question  of  law  for  tlie  court.     We  have  already  referred  to 


Co.,  10  Allen,  368;  Elliott  v.  Pray,  Id.,  378;  Chapman  v.  RothwcU,  Kl.  Bl. 
&  El.,  168;  Freer  v.  Cameron.  4  Rich.,  228).    *    •    • 

"Tlie  master  may  also  be  guilty  of  actionable  negligence  in  exposing 
persons  to  perils  in  his  sei-vice  which,  though  open  to  observation,  they  by 
reason  of  their  youth  or  inexperience  do  not  fully  understand  and  appreciate, 
and  are  injured  in  conseriuence.  Such  cases  occur  most  frequently  in  the 
employnu-nt  of  infants.  It  has  been  repeatedly  held  that  the  Ciise  of  an 
infant  is  no  excoption  to  the  general  ndo  which  exempts  the  master  from 
responsibility  for  injuries  .arising  from  the  hazards  of  his  service.  But  while 
this  is  unquestionably  true  as  a  rule,  it  would  be  gross  injustice,  not  to  say 
absurdity,  to  apply  in  the  case  of  infants  the  same  testa  of  the  master's  cul- 
pable negligence  which  are  applied  in  the  case  of  persons  of  maturity  and 
experience.  *  *  *  (Citing  Grizzle  v.  Frost,  3  Fost.  &  Finl.,  622;  Coombs 
V.  New  Bedford  Cordage  Co..  102  Mivss.,  572.)    *    *     * 

"The  master  may  also  be  negligent  in  commanding  the  servant  to  go  into 
exceptionally  dangerous  places,  or  to  subject  himself  to  risks  which,  though 
he  may  be  aware  of  the  danger,  are  not  such  as  he  had  reason  to  expect,  or 
to  consider  as    being  witliin  the  emplo3^uent.     *    *    * 

"The  master  may  also  be  negligent  in  not  exercising  ordinary  care  to 
provade  suitable  and  safe  machinery  or  appliances,  or  in  making  use  of  those 
which  he  knows  have  become  defective,  but  the  defects  in  which  he  does  not 
explain  to  the  ser\'ant,  or  in  continuing  ignorantly  to  make  use  of  those 
which  are  defective,  where  his  ignorance  is  due  to  a  neglect  to  use  ordinary 
pnidence  and  diligence  to  discover  defects.  *  *  *  (Citing  Kecgan  v. 
Western  R.  R.  Co.,  8  N.  Y.,  175,  where  the  injury  occuiTcd  firom  continuing 
to  use  a  defective  and  dangerous  locomotive,  after  notice  to  the  company  of 
its  dangerous  condition.  And  see,  McGatrick  v.  Wason,  4  Ohio  St.,  566; 
Cayzer  v.  Taylor,  10  Gray,  1 ;  Columbus,  etc.  R.  R.  Co.  v.  Arnold,  31  Ind., 
174.  In  Noyes  v.  Smith,  28  Vt.,  59,  a  declaration  was  sustained  which 
charged  the  defendants  with  negligence  in  putting  the  plaintiff,  their  ser- 
vant, in  charge  of  an  insufficient  engine,  which  insufficiency  was  unknown 
to  the  plaintiff,  and  but  for  the  want  of  care  and  diligence  would  have  been 
known  to  the  defendants.  The  like  doctrine  is  declared  in  Snow  v.  Housa- 
tonic  R.  R.  Co..  8  Allen,  441 ;  Seaver  v.  Boston,  etc.  R.  R.  Co..  14  Gray,  466; 
Hackett  v.  Middlesex  Manuf.  Co.,  101  Mass.,  101;  Laning  v.  N.  Y.  Cent.  R. 
R.  Co.,  49  N.  Y.,  521;  and  Illinois  Central  R.  R.  Co.  v.  Welch,  52  111.,  183. 
The  peril  in  the  case  last  cited  was  the  projecting  awning  of  the  station  house, 
wliich  was  liable  to  strike  a  passing  car.  Say  the  court:  "The  evidence 
shows  that  the  peril  had  long  before  been  observed  by  other  employees,  and  the 
attention  of  both  the  division  superintendent  and  division  engineer  called  to 


CONTEIBUTORY  JS'EGLIGENCE.  179 

"Whether  the  Question  is  one  of  Law  or  Fact. 

instances  where  the  courts  have  held  certain  acta  contributory 
negligence,  per  se/  and  where  the  actions  could  not,  for  that 
reason,  be  sustained.  But,  what  is  the  ordinary  care  required 
nnder  the  circumstances  of  the  case,  and  whether  the  plaintiif 

it.  This  circumstance  takes  away  all  excuse  from  the  company,  and  brings  the 
case  within  the  leg-al  proposition  of  appellant's  counsel,  since  it  was  a  peril 
known  to  the  employer  and  not  revealed  to  the  employee."  The  rule  has 
been  applied  to  the  case  of  a  railroad  company  which  was  charged  with 
negligence  in  permitting  its  road  to  become  blocked  mth  snow  and  ice,  and 
a  car  to  be  out  of  repair,  by  means  whereof  the  plaintiff  was  injured.  Fifield 
V.  Northern  R.  R.  Co..  42  N.  H.,  '225.) 

"  The  servant  when  he  engages  to  run  the  risks  of  the  service,  including 
those  arising  from  the  neghgence  of  fellow  servants,  has  a  right  to  understand 
that  the  master  has  taken  reasonable  care  to  protect  him  from  such  risks,  by 
associating  him  only  with  persons  of  ordinary  skill  and  care.  *  *  * 
(Citing  Alderson  B.  in  Hutchinson  v.  Railway  Co.,  5  Exch.,  343.) 

"  It  is  also  negligence,  for  which  the  master  may  be  held  responsible,  if 
knowing  of  any  peril  which  is  kno^vn  to  the  servant  also,  he  fails  to  remove 
it  in  accordance  with  assurances  made  by  him  to  the  servant  that  he  will 
do  so.     *    *    * 

"  As  the  servant  only  undertakes  to  assume  the  hazards  of  his  own  employ- 
ment, it  must  follow  that  if  the  master  carries  on  another  and  wholly  distinct 
business,  an  injurj'  occasioned  by  the  negligence  of  a  servant  in  such  other 
business,  not  being  within  the  contemplation  of  the  employment,  will  give 
ground  for  an  action  under  the  same  circumstances  which  would  render 
liable  any  stranger  who  might  have  been  the  employer  of  the  neghgent 
servant.     *    *    * 

"  We  have  seen  that  in  some  cases  the  master  is  charged  with  a  duty  to 
those  serving  him  which  he  cannot  divest  himself  of  by  any  delegation  to 
others.  He  is  charged  with  such  a  duty  as  regards  the  safety  of  his  premises, 
the  suitableness  of  the  tools,  implements,  machinery  or  materials  he  procures 
or  employs,  and  the  servants  he  engages  or  makes  use  of.  Whoever  is  per- 
mitted to  exercise  the  master's  authority  in  respect  to  these  matters,  is  charged 
with  the  master's  duty,  and  the  latter  is  responsible  for  a  want  of  proper 
caution  on  the  part  of  the  agent  as  for  his  own  personal  negligence.  *  *  * 
(Citing  Ford  v.  Fitchburg  R.  Co.,  110  Mass.,  240;  Wright  v.  N.  Y.  Cent.  R. 
Co.,  25  N.  Y.,  562;  Laning  v.  N.  Y.  Cent.  R.  Co.,  49  Id.,  521;  Chicago, 
etc.,  R.  Co.  v.  Jackson,  55  III.,  492.)  But  these  are  not  the  only  cases  in 
which  the  master  is  to  be  considered  as  represented  by  an  agent,  who  for 
the  time  being  is  charged  with  his  duty.  A  corporation  can  only  manage 
its  affairs  through  otficers  and  agents,  and  if  it  is  to  be  held  responsible  to 
its  servants  for  negligence  in  any  case,  it  must  be  because  some  of  these  are 
negligent.  But  whose  negligence  shall  be  imputed  to  the  corporation  as  the 
neghgence  of  the  principal  itself  ?    Certainly  not  that  of  all  its  officers  and 


180  THE  LAW  OF  DAMAGES. 


Whether  the  Question  Is  one  of  Law  or  Fact. 


exercised  such  care,  are  ordinarily  questions  of  fact  for  the 

Thus,  it  is  said  in  Beers  v.  Ilousatonic  Railroad  Company, 
that:  "It  is  from  the  very  nature  of  the  case  imp()ssii)le  for 
the  law  to  prescribe  the  determinate  acts  which  in  any  case, 
much  less  those  which  in  all  cases,  would  constitute  this  kind 
of  care,  *  *  *  and  the  question  as  to  the  exercise  of  such 
care,  is  to  be  determined  like  other  questions  of  fact."" 

agents,  for  this  would  be  to  abolish  wholly,  in  its  application  to  the  case  of 
corporations,  a  i-ule  alike  reasonable  and  of  high  importance. 

"  So  far  as  the  board  of  directors  are  concerned,  no  question  can  be  made 
that,  for  any  such  purpose,  they  represent  the  corporation,  and  its  acts  as  a 
board  arc  the  acts  of  a  principal.  They  constitute  the  highest  and  most 
authoritative  expression  of  corporate  volition,  and  the  corporate  duties  are 
duties  to  be  performed  by  the  board.  But  such  a  board  holds  only  periodical 
meetings,  and  at  other  times  the  powers  of  the  corporation  are  usually 
expected  to  be,  and  actually  are,  exercised  by  some  officer  or  general 
superintendent  with  large  discretionary  powers.  Unless  such  officer  or 
superintendent  is  to  be  considered  as  occupying,  for  all  the  purposes  of  the 
rule  now  under  consideration,  the  position  of  the  principal  itself,  it  is  obvious 
that  there  must  be  assumed  in  the  case  of  corporations,  and  indeed  in  other 
cases  where  the  whole  charge  of  the  business  is  delegated  to  another,  some 
risks  which  the  servant  does  not  assume  where  the  master  himself  takes 
general  charge  in  person.     *    *    * 

"Perhaps  this  whole  subject  may  be  accurately  summed  up  in  a  single 
sentence  as  follows :  Tlie  rule  that  the  master  is  responsible  to  pei-sons  who 
are  injured  by  the  negligence  of  those  in  his  service,  is  subject  to  this  gen- 
eral exception:  that  he  is  not  responsible  to  one  person  in  his  employ  for  an 
injury  occasioned  by  the  negligence  of  another  in  the  same  service,  unless 
generally,  or  in  respect  of  the  particular  duty  then  resting  upon  the  neghgent 
employe,  the  latter  so  far  occupied  the  position  of  his  principal  as  to  render 
the  principal  chargeable  for  his  negligence  as  for  a  personal  fault. ' '  Southern 
L.  Rev.,  Vol.  2,  (N.  S.),  p.  113,  et  seq. 

«  West  Chester  R.  Co.  v.  McElwee,  67  Pa.  St.,  311;  Greenleaf  v.  Illinois, 
etc.,  R.  Co.,  29  la.,  36;  Shearman  v.  The  Western  Stage  Co.,  24  Id.,  .567; 
Clayards  v.  Dethick,  74  E.  C.  L.,  445;  Mariott  v.  Stanley,  39  Id.,  5-59;  Balti- 
more, etc..  R.  Co.  v.  State,  etc.,  33Md..542;  Baltimore,  etc.,  R.  Co.  v.  Fitz- 
patrick,  35  Id.,  32;  Graynor  v.  Old  Colony  R.  Co.,  100  Mass.,  212;  Owens  v. 
Han.  &  St.  Jos.  R.  Co.,  58  Mo.,  386;  Trow  v.  Vermont,  etc..  R.  Co.,  24  Vt., 
495. 

•M  19  Conn.,  566.  See,  also,  Langhoff  v.  Milwaukee,  etc.,  R.  Co..  19  Wis., 
496;  Artzv.  Chicago,  etc.,  R.  Co.,  34  la.,  161;  Brown  v.  The  Han.  &  St. 
Jos.  R.  Co.,  50  Mo.,  461. 


CONTEIBUTOKY  NEGLIGENCE.  181 


The  Question,  in  General,  one  for  the  Jurj'. 


§  187.  The  assumption  on  the  part  of  courts  of  their 
power  to  determine  in  particular  cases  that  acts  are,  per  se, 
negligent,  is  a  power  which  should  be  exercised  with  great 
caution,  and  is  liable  to  much  abuse.  This,  however,  seems  to  be 
warranted  by  many  respectable  authorities;  and  the  duty  is 
sometimes  clear."  But  it  will  be  apparent  that  this  authority 
could  be  so  extended  as  to  take  from  the  jury  all  questions  of 
this  character. 

On  this  subject  the  learned  Chief  Justice,  Cooley,  remarks: 
"  It  must  be  a  very  clear  case  which  would  justify  the  court  in 
taking  ui)Ou  itself  this  responsibility.  For,  when  the  judge 
decides  that  a  want  of  due  care  is  not  shown,  he  necessarily 
fixes  in  his  own  mind  the  standard  of  ordinary  prudence,  and 
measuring  the  plaintiff's  conduct  by  that,  turns  him  out  of 
court  upon  his  opinion  of  what  a  reasonably  prudent  man 
ouo-ht  to  have  done  under  the  circumstances.  He  thus  makes 
his  own  opinion  of  what  would  be  generally  regarded  as  pru- 
dence a  definite  rule  of  law."  " 

§  188.  The  Question,  in  General,  one  for  the  Jury.— 
Whether  the  plaintiff  is  in  the  wrong  in  a  particular  case  is 
ordinarily  a  question  for  the  jury  to  determine;  and  courts 
cannot  well  pronounce  as  a  matter  of  law  that  the  plaintiff  is 
guilty  of  contributory  negligence,  no  more  than  it  can  deter- 
mine that  acts  of  the  defendant  are,  j)er  se,  negligent,  and 
entitle  the  plaintiff  to  recover.*'  "  Negligence  cannot  be  con- 
clusively established    by  a  state  of   facts    upon   which  fair 

minded  men  may  well  differ." '' 

4-  Lewis  V.  Baltimore,  etc.,  R.  Co.,  38  Md.,  588;  Barton  v.  St.  Louis  &  Iron 
Mou.  K.  Co.,  52  Mo.,  253.  ,       „     . 

43  Detroit,  etc.,  R.  Co.  v.  Van  Steinburgh,  17  Mich.,  99.  See,  also,  Hunt 
V.  Chicago  &  N.  W.  R.  Co.,  26  la.,  369,  where  it  is  said  ordinary  care  is 
"that  which  is  regarded  by  the  good  common  sense  of  mankind  as  reason- 
ably due  under  all  the  circumstances  of  the  case." 

**  Hegan  v.  Eighth  Avenue,  etc.,  R.  Co.,  15  N.  Y.,  380;  The  Madison,  etc., 
R.  Co.  V.  Taffee,  37  Ind.,  361.  ,,.,..  ^, 

45  Per  Cooley.  C.  J.,  in  Detroit,  etc.,  R.  Co.  v.  Van  Stemburgh,  17  Mich., 
supra,  where  will  be  found  an  exhaustive  examination  of  the  question  and 
authorities. 


182  THE  LAW  OF  DAMAGES. 

Burden  o(  Proof. 

§  189.  Burden  of  Proof.— The  rule  in  relation  to  the 
burden  of  proof  has  been  variously  declaretl.*'  But  it  may  be 
safely  said,  that  no  presumptions  should  be  allowed  a^^ainst 
the  ])laintifF.  And  unless  it  should  affirmatively  appear  from 
the  evidence  that  the  plaintiff  has  been  guilty  of  culpable 
negligence,  directly  and  ai)j>r<)ximatL'ly  orirrihuting  to  the 
injury,  it  will  be  presuint-d  tJKit  he  was  free  from  such  negli- 
gence. 

On  the  other  hand  where  it  is  disclosed  by  the  plaintiff's 
evidence,  that  he  has  been  guilty  of  such  negligence,  he  can- 
not recover." 

•  The  "natural  instinct  of  self-presorvarion  would  stan<l  in 
the  place  of  positive  evidence,"  and  '*  the  absence  of  fault 
on  the  part  of  the  plaintiff  may  be  inferred  from  circum- 
stances."*" 

It  is  said:  "The  culpability  of  the  defendant  must  be 
affirmatively  proved,  before  the  case  can  go  to  the  jury,  but 
the  absence  of  any  fault  on  the  part  of  the  plaintiff  may  be 
inferred  from  circumstances.  *  *  *  It  is  not  essential 
that  the  plaintiff  should  give  any  affirmative  proof  touching 
his  own  conduct  on  the  occasion  of  the  accident."" 

So,  in  Pennsylvania,  it  is  held  not  to  be  incumbent  on  the 
plaintiff  to  show  affirmatively  that  no  negligence  on  his  part 
contributed  to  the  injury.  But  that  if  the  plaintiff's  evi- 
dence discloses  contributory  negligence  he  cannot  recover.*" 


46  Shear.  &  R.  on  Neg.,  §  4:3. 

47  Railroad  Co.  v.  Gladman,  15  WaU.,  401;  Thompson  v.  North  Mo.  R. 
Co.,  51  Mo.,  190. 

48  Oldfieldv.  New  York,  etc.,  R.  Co.,  14  N.  Y.,  310;  Shear.  &  Red.  on  Neg., 
§§  43,  44. 

49  Johnson  v.  Hudson  R.  R.  Co.,  20  N.  Y..  65. 

so  Pennsylvania  Canal  Co.  v.  Bentley,  66  Pa.  St.,  30;  Cleveland,  etc.,  R. 
Co.  V.  Rowan,  66  Pa.  St.,  393.  See,  also,  New  Jersey  Exp.  Co.  v.  Nichols, 
33  N.  J.  L.,  434  (1868);  Railroad  Co.  v.  Gladman,  15  Wall.,  401;  Robinson 
V.  N.  Y.  Cent.  R.  Co.,  65  Barb.  (N.  Y.),  146;  Thompson  v.  North  Mo.  R.  Co., 
51  Mo.,  190. 


CONTRIBUTORY  NEGLIGENCE.  183 


Presumptidn  from  Instinct  of  Self-Pi-eservation— Injured  Person  a  Child. 


§190.  But  a  contrary  or  somewhat  qualified  rule  seems 
to  be  recognized  in  Massachusetts,  and  some  other  states; 
namely,  that  the  plaintiff  is  required  by  affirmative  evidence 
to  show  his  own  freedom  from  negligence  contributing  to  the 
injury  of  which  he  complains.  And  tliat  when  the  plaintiff's 
case  foils  to  show  ordinary  care  as  judged  by  the  light  of 
common  knowledge  and  experience,  he  shows  no  right  to 
recover." 

§  191.  Presumption  from  the  Instinct  of  Self-Preser- 
A'ation.— Absence  of  fault  on  the  part  of  the  injured  party 
should  be  presumed,  from  the  disposition  of  persons  to  avoid 
injury  to  themselves,  which  is  a  matter  of  common  knowledge 
and  experience,  and  this  would  seem  to  be  most  in  harmony 
with  tlie  principles  of  evidence  and  the  genius  of  our  juris- 
prudence." And  where  the  contributory  negligence  of  the 
plaintiff  is  not  disclosed,  by  liis  own  evidence,  it  must  be 
affirmatively  shown,  by  the  defendant's  evidence,  to  defeat  a 
recovery  on  that  ground." 

§  192.  Where  the  Injured  Person  is  a  Child.— In 
actions  to  recover  damages  for  injuries  received  from  the 
neo-li^ence  of  another,  the  rule  as  to  the  contributing  negli- 

Oft' 

gence  of  an  adult,  and  that  of  the  infant  of  tender   years,  is 
quite  different. 

It  is  required  ot  an  adult,  tliat  he  give  that  care  and  atten- 
tion to  his  own  protection  that  is  ordinarily  exercised  by  per- 
sons of  intelligence  and  discretion  under  similar  circum- 
stances; and  if  he  fails  to  exercise  such  care,  and  thereby  con- 

45  Gaynorv.  Old  Colony,  etc.,  R.  Co.,  100  Mass.,  208;  Thompson  v.  Bridge- 
water,  7  Pick.,  183;  Lane  v.Crombie,  12  Pick.,  177  (1868);  Adams  v.  Car- 
lisle, 21  Pick.,  147;  Donaldson  v.  Miss.,  etc.,  R.  Co.,  18  la..  280;  Murphy  v. 
Deane,  101  Mass.,  455  (1869);  Gahagan,  Adm'r,  v.  Boston,  etc.,  R.  Co.,  1 
Allen,  (Mass.),  187. 

46  Northern  Cent.  R.  Co.  v.  State,  etc.,  31  Md.,  357  (1869);  Shear.  &  Red. 
on  Neg.,  §  44;  Johnson  v.  Hud.  Riv.  R.  Co.,  5  Duer,  21,  opinion  by  Duer,  J. 

*7  Robinson  v.  N.  Y.  Central,  etc.,  R.  Co,,  65  Barb.,  146  (1873). 


184  THE  LAW  OF  DAMAGES. 

Where  an  Infant  Is  Incapable  of  Judgment. 

tributes  to  his  own  injury,  it  is  the  result  of  his  own  folly, 
and  the  consequences  should  not  rest  u]»on  another.  But,  of 
an  infant  of  tender  jears,  less  care  and  jud<^inent  is  required; 
the  degree  of  care  depending  on  its  age  and  knowledge. 

Ordinarilv,  of  a  child  live  years  old.  less  caution  and  j)rn- 
dence  would  he  reijuirLd,  than  <>iie  ten  years  old;  and  of  one 
ten  years  old,  less  than  one  fifteen.  Tlie  cautio:i  and  cire 
required  varies  with  the  cai>acity  and  maturity  of  the  child, 
and  this  is  to  be  determined  by  the  jury  from  all  the  circum- 
stances of  the  case.*' 

Thus,  where  the  parents  of  a  child  permitted  him  to  cross  a 
street,  and  while  ci-ossing  he  was  injured  by  the  negligence  of 
a  traveler,  it  was  held  sutlicient  to  entitle  the  child  to  recover 
for  the  injury,  that  he  was  using  that  degree  of  care,  of  which 
he  was  capable,  though  a  less  degree  than  would  beapitropri- 
ate  for  an  adult  to  use  under  like  circumstances;  and  that 
even  if  the  parents  were  negligent  in  permitting  him  to  cross 
the  street  alone,  their  negligence  was  not  contributory,  and 
the  child  was  entitled  to  recover,  if  in  crossing  the  street  he 
did  no  act  which  prudence  would  have  forbidden,  and  omitted 
no  act  which  prudence  would  have  dictated,  according  to  the 
best  judgment  of  one  of  his  physical  and  intellectual  capac- 

ity/' 

§  193.    Where  un  Infant  is  Incapable  of  Judgment. 

If  the  infant  is  so  young  as  to  be  entirely  destitute  of  any 
judgment,  and  entirely  incapable  of  exercising  any  care,  pru- 
dence or  caution  in  any  matter,  he  is  not  chargeable  with  con- 
tributory negligence. 

Thus,  in  an  action  in  behalf  of  a  child  eighteen  months 
old,  for  injuries  sustained  through  the  negligence  of  a  railroad 
company,  it  was  held,  that  the  defense  of  contributory  negli- 

48  Railroad  Co.  v.  Gladman,  15  Wall.,  (U.  S.),  401.  See,  also,  Stout  v.  Sioux 
City,  etc.,  R.  Co.,  2  Dill.,  C.  C,  294. 
«  Lynch  v.  Smith,  104  Mass.,  52  (1870). 


CONTRIBUTOEY  NEGLIGENCE.  185 

Negligence  of  Parent  or  Guardian  no  Defense  to  Action  by  Infant. 

gence  could  not  be  maintained  against  a  recovery  for  the  injuries ; 
that  sucli  a  child  was  incapable  of  comprehending  the  immi- 
nent danger  of  remaining  upon  a  railroad  track,  when  a  train 
of  cars  was  appioaching;  that  he  could  neither  apprehend  the 
danger  to  which  he  would  be  exposed  in  such  a  situation,  nor 
take  suitable  means  to  protect  himself  against  it;  and  that 
neo-ligence  could  not  be  properly  imputed  to  him  since  he 
could  know  nothing  of  care,  diligence,  or  danger."  To 
claim  that  such  a  child  is  bound  by  the  same  legal  rules,  in 
reo-ard  to  the  exercise  of  care  and  dilgence  in  avoiding  danger 
and  escaping  the  consequences  of  other's  neglect,  which  are 
applied  to  persons  of  full  age  and  capacity,  would  be  unreas- 
onable; and  all  that  is  demanded  under  such  circumstances, 
is  a  degree  of  care  and  diligence,  equal  to  the  capacity  of  the 
child. 

§  194.  Negligence  of  Parent  or  Guardian  no  De- 
fense to  Action  by  the  Infant.— Some  conflict  has  occurred 
in  the  decisions  of  courts  on  the  question  whether,  in  an  action 
for  the  infant  or  on  his  behalf,  the  negligence  of  the  parent 
can  be  imputed  to  the  child  and  thereby  defeat  the  action  on 
the  ground  of  contributing  negligence." 

The  weiglitof  authority  is  against  such  imputed  negligence. 
Thus,   in   a   recent  case  in   Ohio,  where  the  action  was  on 

50  Schmidt  V.  Milwaukee,  etc.,  R.  Co.,  23  Wis.,  186.  In  this  case  the  rail- 
road company  neglected  to  build  a  fence  required  by  the  statute,  and  the 
child  strayed  upon  the  track  and  was  injured  by  a  passing  train.  The  jury 
found  there  was  no  want  of  ordinary  care  on  the  part  of  the  custodians  of 
the  infant,  and  that  a  proper  fence  would  have  prevented  the  child  from 
getting  upon  the  track.  A  verdict  for  damages  therefore  was  sustained. 
See,  also.  Robinson  v.  Cone,  22  Vt.,  213;  Daley  v.  Norwich,  etc.,  R.  Co.,  26 
Conn..  561;  North  Penn.  R.  Co.  v.  Mahoney,  57  Pa.  St.,  187;  Smith  v. 
O'Conor,  48  Id..  218. 

5'  That  the  infant  is  personally  chargeable  with  the  negligence  of  the 
guardian,  is  supported  by  the  following  authorities:  Hartfield  v.  Roper,  21 
Wend.,  615;  Mangum  v.  Brooklyn,  etc.,  R.  Co.,  36  Barb.,  530;  38  N.  Y.,  455; 
Lehman  v.  Brooklyn,  29  Barb.,  2:34;  Kreig  v.  WeU,  1  E.  D.  S.,  74;  Callahan 
V.  Bean,  9  Allen,  401;  Lafayette,  etc.,  R.  Co.  v.  Huffman,  28  Ind.,  287; 
Chicago  V.  Star,  42  lU.,  174. 


186  THE  LAW  OF  DAMAGES. 

Distinction  where  Action  Is  by  I'arent. 

behalf  of  a  child  of  tender  years,  for  injuries  sustained  by 
the  negligence  of  the  defendant,  and  the  defendant  set  up  as 
a  defense  to  the  action,  the  negligence  of  the  custodian  in 
allowing  the  child  to  go  unattended  wiiere  the  injury  was 
received,  and  that  it  was  therefore  a  case  of  contributory  neg- 
ligence. The  child  was  too  young  to  understand  the  care 
required  to  avoid  injury  under  the  circumstances.  The  court 
say:  "No  action  can  be  maintained  against  him  for  the 
negligence  of  his  parent  or  custodian;  and  it  is  difficult  to 
perceive  what  ]>rinciple  of  public  policy  is  to  l>e  subserved., 
or  how  it  can  be  reconciled  with  justice  to  the  infant,  to  make 
liis  personal  rights  dependent  upon  the  good  or  bad  conduct 
others."  " 

§  105.  DistiiK'tiou  where  the  Action  is  by  the  Par- 
ent.— A  distinction  is  drawn  between  actions,  by  or  on  behalf 
of  the  infant,  and  actions  by  the  parent  or  representatives  of 
deceased  persons,  or  other  persons  authorized  by  statute  to 
recover  for  injuries  resulting  in  death. 

We  have  noticed  in  the  former  case  that  contributory  neg- 
ligence is  not  chargeable  against  a  plaintiff  to  defeat  a  right  of 
recovery,  where  he  is  too  young  to  exercise  any  care,  or  where 
he  exercises  care  and  discretion  according  to  his  understand- 
ing and  capacity;  and  on  the  preponderance  of  authority  he  is 
not  to  suffer  from  the  negligence  of  the  parent  or  guardian. 
But  in  the  latter  case,  many  authorities  hold  that  the  want  of 
care  or  negligence  on  the  part  of  the  parent  may  be  shown, 
and  that  their  contributory  negligence  would  be  a  defense  to 
an  action  for  an  injury. 

Thus,  in  an  action  brought  by  a  father  for  damages  sustained 
by  injuries  to  a  child  five  years  old,  who  w'as  run  over  and 
injured  by  a  horse  car,  and  from  which  injury  he  died,  the 

s»  Belfontaine,  etc.  R.  Co.  v.  Snyder,  18  Ohio  St.,  399  (1868).  The  opinion 
of  the  court  in  this  case  cites  and  reviews  many  authorities  relating  to  this 
question.    See,  also,  post,  §  617,  note. 


CONTKIBUTOEY  NEGLIGENCE.  187 


Distinction  where  Action  is  by  Parent. 


court  instructed  the  jury,  that,  if  the  death  of  the  child  resulted 
from  the  want  of  ordinary  care  and  caution  on  the  part  of  the 
driver  employed  by  the  defendant,  the  plaintiff  was  entitled 
to  recover,  provided  the  jury  found  that  the  accident  could 
not  have  been  avoided  by  the  exercise  of  such  care  and  caution 
by  the  child,  as  ought  under  the  circumstances  to  have  been 
reasonably  expected  from  a  child  of  that  age,  or,  by  the  exer- 
cise of  ordinary  care  and  caution  on  the  part  of  the  father  of 
the  child,  or  the  person  accompanying  the  child,  at  the  time  of 
the  accident.  And  it  was  held  that  the  instruction  was  not 
erroneous. 

§  196.  And  where  plaintiff  allowed  his  son  six  years  old 
to  go  to  and  from  school  through  the  streets  of  a  crowded  city 
without  a  protector,  and  he  was  run  over  by  the  defendant; 
it  was  held,  that  if  the  boy  neglected  to  exercise  the  care  and 
caution  which  an  adult  of  ordinary  prudence  would  use,  and 
that  this  contributed  to  the  injury,  the  plaintiff  could  not 
recover.  And  it  was  further  held,  that  the  plaintiff's  negli- 
gence in  such  a  case  would  defeat  his  right  of  action  the  same 
as  though  the  injury  had  been  to  himself." 

53  Baltimore,  etc.,  R.  Co.  v.  State,  etc.,  30  Md.,  47  (1868).  But  compare, 
OTlaraty  v.  Union,  etc..  R.  Co.,  45  Mo.,  70  (1868).  See  also,  Bronson  v. 
Southburj-,  37  Conn.,  199;  Kerr  v.  Forgue.  54  lU.,  482. 

In  a  recent  case  in  Missouri  where  an  action  was  bi  ought  by  the  father  for 
the  negligent  killing  of  his  infant  son,  the  court  on  the  trial  refused  to  give 
the  following  instruction:  "  If  the  jury  beheve  from  the  evidence  that  the 
child  was  kiUed  by  reason  of  the  negligence  of  the  person  who  was  in  charge 
and  had  custody  of  said  chdd  at  the  time  it  was  killed,  or  if  they  beUeve  from 
the  pvidence  that  the  carelessness  and  want  of  care  of  said  person  materially 
contributod  to  the  death  of  said  chUd,  they  wiU  find  the  for  defendant."  The 
Supreme  Court  of  that  State  held,  that  the  refusal  to  so  instruct  wa^  not  errone- 
ous. Opinion  of  Wagner,  J.,  inlsbel  v.  The  Hannibal,  ete.,  R.  Co.,  May  Term, 
1875,  Cent.  L.  J.,  Vol.  2,  p.  590.  See  also,  Walters  v.  Chicago,  ete.,  R.  Co., 
41  la  71  where  it  was  held  that  it  is  sufficient  care  of  an  infant,  where  the 
father  is  a  laboring  man  and  the  mother  is  sick,  that  they  have  plaxjed  the 
chUd  in  the  care  of  a  proper  person. 

54  Honigsberger  v.  Second  Avenue,  ete.,  R.  Co.,  2  Abb.  (N.  Y.),  App.  Dec  , 
378;  33  How.  (N.  Y.),  Pr.,  193;  Reversing  s.  c,  1  Daly  89;  Burk  v.  Broad- 


188  THE  LAW  OF  DAMAGES. 

Question  for  Jury -Intoxicated  rersons— Blind  Persons. 

§  197.  Question  for  the  Jury.— lu  an  action  by  the 
parent  of  a  child,  it  was  held  to  be  a  question  of  fact  for  the 
jury  whether  there  was  negligence  on  the  part  of  the  j)arent 
in  allowing  the  child  to  go  unattended  in  the  streets,  where  lie 
was  injured;  and  that  it  de])ended,  not  only  upon  his  age,  but 
his  intelligence  and  physical  ability." 

§  198.  Intoxicuted  Persons-— The  effect  of  contributive 
negligence  to  defeat  a  right  of  action,  is  not  affected  by  tlie 
fact  that  the  injured  party  was  intoxicated  at  the  time.  For, 
while  he  may  not  be  held  to  that  high  degree  of  care  that 
would  be  exacted  of  sober  persons,  still  he  is  not  excused  from 
diligence  and  care." 

§  199.  Blind  Persons. — It  seems  that  blind  persons  are 
placed  on  the  same  ground  as  infants,  in  respect  to  those  acts 
of  contribution  to  the  injury,  which  arise  from  the  want  of  the 
faculty  of  seeing;  and  they  are  only  required  to  exercise  the 
faculties  they  may  have,  according  to  the  best  of  their  abilities 
and  understanding. 

Thus,  where  a  man,  in  the  day  time,  walked  oflf  the  side  of 
an  unobstructed  bridge  sixteen  feet  wide,  which  was  defective 
for  want  of  a  rail,  and  suffered  an  injury  which  would  not 
have  happened  but  for  his  blindness,  the  court  refused  to  say 
that,  as  a  matter  of  law,  his  fault  contributed   to  the  injury, 

way  R.  Co.,  49  Barb.,  529;  34  How.  (N.  Y.),  Pr.,  239.  Unless  there  is  unusual 
exposure  to  danger,  there  is  no  negligence  whatever  in  allowing  a  child 
between  ten  and  twelve  years  old,  of  ordinary  activity  and  intelligence  to  be 
in  the  streets.     Hon-  v.  Parks,  40  Cal.,  188  (1870). 

ss  Schierhold  v.  North  Beach  R.  Co.,  40  Cal.,  447.  See,  also,  Westchester, 
etc.,  R.  Co.,  V.  McElwee,  67  Pa.  St.,  311  (1870);  Willard  v.  Pinard,  44  Vt., 
34;  Haskford  v.  New  York,  etc.,  R.  Co.,  43  How.  Pr.  (N.  Y.),  222;  Ihl  v. 
Forty  Second  St.,  etc.,  R.  Co.,  47  N.  Y.,  317  (1872).  The  wrongdoer  is 
always  liable  for  the  result  of  his  willful  and  malicious  acts,  although  the 
acts  of  the  plaintiflf  contributed  to  the  injury.  111.  Cent.  R.  Co.  v.  Hutchin- 
son, 47  111.,  408. 

56  111.  Cent.  R.  Co.  v.  Hutchinson,  47  111.,  408,  (1868).  But  see,  Meyer 
V.  PaciBc  R.  Co.,  40  Mo.,  151. 


CONTEIBUTORY  NEGLIGENCE.  189 

Persons  Non  Compos  Mentis. 

but  held,  that  it  was  for  the  jury  to  say,  after  considering  his 
fomiliarity  with  the  road,  his  ability  arising  from  the  increased 
acuteness,  fidelity,  and  power  of  his  other  senses,  or  otherwise, 
and  all  the  circumstances  of  the  case,  whether  he  was  guilty 
of  carelessness  in  attempting  to  pass  the  bridge  without  a 
guide." 

§  200.  Persons  Non  Compos  Mentis.— The  same  rule, 
on  the  question  of  contributory  negligence,  we  have  noticed  as 
applicable  to  infants  of  tender  age,  would  undoubtedly  be 
ap])licable  to  idiots,  lunatics,  and  others,  non  compos  mentis.'"' 


57  Sleeper  v.  Sandown.  52  N.  H.,  244  (1872). 

58  See  many  cases  already  cited  relating  to  infants. 


190  THE  LAW  OF  DAMAGES. 

Damages  on  Contracts  for  Non-Payment  of  Money. 


CELAPTEE  XL 


DAMAGES  ON   CONTRACTS   FOR  THE  NON-PAY 
MENT  OF  MONEY. 

Section  210.  Actual  Compenaation  the  Rule. 

212.  Interest  as  Damagea— Civil  Law. 

213.  Promissory  Notes. 

214.  Interest  at  the  Place  of  Payment. 

215.  Interest  in  Different  States. 

216.  Money  means  Coin. 

217.  Legal  Tender  Acts— Constitutional. 

218.  Applied  to  Antecedent  Debts— Constitutional. 

219.  Agreement  to  Pay  in  Qold  or  Silver  Coin,  etc. 

222.  Propositions  Deducible  from  the  Decisions. 

223.  Contracts  of  Affreightment— Sterling  Money. 

224.  When  Parties  Stipulate  for  Interest  at  a  Particular  Place 

225.  Exchange. 

226.  Protest. 

227.  Indorsee  against  Indorser  or  Surety. 

228.  Fraud  in  Transfer— Guaranty  of  Qenuineneas. 

229.  Notes  Payable  in  Specific  Articles. 

230.  Bills  of  Exchange. 

232.  Fixed  Sum  as  Damages  on  Protest. 

233.  The  Lex  Loci  Contractus. 

SCALING  LAWS. 

234.  North  Carolina— Scale  of  Depreciation. 

235.  Where  Applicable. 

236.  Ordinances  of  Alabama  and  Georgia. 

237.  WTiere  not  Applicable. 

238.  The  Scaling  Laws  of  Virginia. 


NON-PAYMENT  OF  MONEY.  191 

Actual  Compensation  the  Eule 

§  210.  Actual  Compensation  the  Rule.— Having  con- 
sidered the  essential  elements  and  general  principles  which 
aftect  damages,  we  now  proceed  to  consider  the  subject  more 
fully  in  connection  with  particular  contracts. 

We  have  remarked  that  the  general  rule  of  damages  on  the 
breach  of  a  contract,  as  well  as  for  a  tort,  whether  the  action 
be  ex  contractu  or  ex  delicto^  is  actual  compensation  for  the 
wrong  done. 

The  damages  for  the  non-payment  of  money  according  to 
contract,  is  the  amount  agreed  to  be  paid  with  interest  accord- 
ing to  its  terms;  or,  in  the  absence  of  any  provisions  as  to 
interest,  the  legal  rate  of  interest  from  the  time  it  becomes 
due.' 

This  is  considered  the  loss  from  the  non-payment  of  money, 
which  is  a  proximate  result  of  the  non-payment.  The  rule 
is  arbitrary  and  artificial.  But  some  certain  and  uniform  rule 
is  convenient  and  desirable,  if  not  necessary.  And  it  may  be 
reasonably  assumed,  that  the  one  recognized  is  as  just  and 
equitable  as  any  which  could  be  adopted. 

§  211.  The  rule  of  the  civil,  as  well  as  of  the  common  law, 
causa  proxima  non  remota  spectatur,  is  here  more  strictly 
observed,  than  in  cases  of  torts,  as  we  have  already  noticed. 
And  the  reasons  for  this  limitation  of  liability,  in  cases  of  a 
breach  of  contract  for  the  payment  of  money,  have  equal  force 
in  such  cases,  as  in  torts.  Besides  the  convenience  of  a  uni- 
form rule  in  these  cases,  it  is  important  that  the  limit  of  liabil- 
ity be  fixed.  It  would  be  impossible,  practically,  to  trace  the 
remote  consequences  of  a  failure  to  pay  money  when  due. 

It  may  bring  pecuniary  embarrassment  to  the  payee,  and 
subject  him  to  extortion  from  usurers;  loss  of  valuable  and 
profitable  contracts  and  undertdcings — prospective  gains  and 


'3  Parsons  on  Con.,  155;  Sedg.  on  Dam.,  232;  Curtis  v.  Innerarity,  6 
How.,  146;  Hyman  v.  Sanders,  12  Cal.,  107;  Edwards  on  Bills  and  Promis- 
sory Notes,  608. 


192  THE  LAW  OF  DAMAGES. 

Interest  as  Damages— Civil  Law  on  the  Subject. 

profits;  to  the  importunity  of  creditors;  suits  at  law  and  in 
equity,  and  consequent  costs  and  expenses,  and  finally,  bank- 
ruptcy and  pecuniary  ruin.  It  may  cause  not  only  loss  of 
business,  but  of  reputation,  of  comfort,  peace  of  mind,  and 
happiness.  And,  moreover,  it  may  cause  sufferin^;^,  sickness, 
insanity,  and  destroy  the  social  standing  and  relations,  not 
only  of  himself,  but  of  his  family.  But  these  possible,  nay, 
perhaps,  common  results,  are  too  remote  and  intangible  to  be 
considered  as  legal  losses  resulting  from  the  non-payment  of 
money  when  due.  The  task  of  investigating  such  results  and 
fixing  a  pecuniary  value  on  them,  would  be  hopeless.  And  if 
it  were  possible,  the  liability  for  such  remote  consequential 
losses,  would  appal  the  most  heroic,  and  paralyze  the  energies 
of  the  most  enterprising  business  man. 

§212.  Interest  as  Damages— Civil  Law  on  the 
Subject. — The  rule  allowing  interest  as  damages  M-ould 
appear  just  and  equitable,  as  the  payee,  on  non-payment  of 
money  due  him,  would,  in  case  he  was  compelled  to  raise  the 
amount,  ordinarily  be  compelled  to  pay  the  legal  rates  of 
interest,  and  would,  in  theory  at  least,  be  indemnified  by 
receivin<>:  the  same,  as  damafjes  for  money  withheld  from 
him. 

But,  however  this  may  be,  the  rule  is  as  well  calculated  to 
promote  justice  as  any  which  could  be  adopted.  This  accords 
also  with  the  rule  of  the  civil  law.  Pothier  remarks,  in  ref- 
erence to  this  subject,  as  follows:  ''As  the  different  damages 
which  may  result  from  the  failure  to  perform  this  kind  of 
obligation  vary  infinitely,  and,  as  it  is  as  difficult  to  foresee  as 
to  excuse  them,  it  has  been  found  necessary  to  regulate  them 
by  a  sj)ecies  of  penalty,  and  fix  them  at  a  precise  sum.'" 

And  Domat  says:  "Interest  is  the  reparation  or  satisfac- 
tion which  he,  who  owes  a  sum  of  money,  is  bound  to  make 

«  Pothier  on  Obli..  Part  1,  Ch.  11,  Art.  3,  170. 


NON-PAYMEKT  OF  MONEY.  193 

Promissory  Notes. 


to  his  creditor  for  the  damage  which  he   does  him  by  not 
paying  iiim  the  money  he  owes  him.'" 

The  Code  of  Louisiana,  based  upon  the  general  doctrines  of 
the  civiHaw,  also  provides  on  this  subject  as  follows:  "The 
damages  due  for  delay  in  the  performance  of  an  obligation  to 
pay  money,  are  called  interest.  The  creditor  is  entitled  to 
these  damages  without  proving  any  loss  and,  whatever  loss  he 
may  have  suffered,  he  can  recover  no  more." ' 

§  2 1 3.  Promissory  Notes . — The  damages  recoverable  on 
a  promissory  note  is  the  principal,  and  the  interest  stipulated 
to  be  paid  therein,  provided  it  does  not  exceed  the  legal  rate 
of  the  country  where  payable.  And  the  general  rule  is,  that 
where  the  note  contains  no  stipulation  for  the  payment  of 
interest,  still  interest  may  be  recovered  at  the  legal  rates,  from 
the  time  it  becomes  due." 

The  rate  of  interest  fixed  by  the  contract  controls  in  this 
respect,  if  it  does  not  exceed  that  limited  by  law.  And  where 
it  provides  for  the  payment  of  interest  annually  or  semi-annu- 

3  Doraat,  Book  3,  Tit.  5  (Cush.  Trans.),  Vol.  1,  p.  741. 

♦  Louisiana  Code  (1867).  Art.  1929.  the  loss  referred  to  is  particular  loss. 
Loss  is  implied  by  the  non-payment.  Although  interest  is  generally  referred 
to  as  the  damges  for  a  failure  to  pay  money  when  due,  we  have  considered 
not  only  that,  but  the  principal  sum  equally  so,  as  being  an  element  in  its 
assessment  and  coming  \nthin  our  definition  of  the  term.  The  creditor 
cannot  be  indemnified  until  he  obtains  his  principal  as  well  as  interest. 
"And  if  the  creditor  is  obliged  to  resort  to  the  courts  for  redress  he 
ought,  in  all  such  cases,  to  recover  interest  in  addition  to  the  debt,  by  way 
of  damages."  Edwards  on  Bills  and  Notes,  712.  See,  also,  as  to  inter- 
est generally,  Van  Rensselaer  v.  Jewett,  5  Denio.,  135;  2  N.  Y.,  135.  But 
if  the  debtor  is  prevented  from  paying  without  his  fault,  as  by  injunction, 
he  is  not  liable  for  interest;  Stevens  v.  Barringer,  13  Wend.,  639;  Fitzgerald 
V.  Caldwell,  2  Dall.,  215;  Le  Branthwait  v.  Halsey,  4  Halst.,  3.  See.  also.  2 
Pars,  on  Con.,  523.  Upon  a  total  breach  of  an  agreement  by  one  party  to 
support  another  during  Ufe,  the  latter  may  recover  full  and  final  damages 
including  not  only  expenses  of  support  to  the  time  of  trial  but  the  prospec- 
tive expenses  during  life.     Schell  v.  Plumb,  55  N,  Y.  592. 

5  Edwards  on  BiUs  and  Notes.  708,  et  seq.;  United  States  Bank  v.  Chapin, 
9  Wend.,  471;  19  John.,  246;  Owsley  v.  Greenwood,  18  Minn.,  429. 
13 


194  THE  LAW  OF  DAMAGES. 

Promlssor>'  Notes. 

ally,  the  time  and  mode  of  payment  is  governed  by  the  agree- 
ment.' 

When  the  principal  and  interest  specified  in  a  bond  or  note 
is  not  paid  when  it  falls  due,  whether  the  payee  is  entitled  to 
the  legal  rate  of  interest  thereafter,  or  tlio  rate  specified  in  the 
instriuiient,  is  a  question  on  which  the  decisions  do  not  appear 
to  be  uniform.  But  the  weight  of  argument,  if  not  of  author- 
ity, M'ould  seem  to  be  in  favor  of  allowing  the  stij)ulatcd  rate  of 
interest  ill  such  cases,  especially  where  it  exceeds  the  rate 
which  is  otherwise  provided  for  by  law.' 

The  statutes  of  many,  if  not  all  the  states,  provide  for  a 
rate  of  interest  for  the  loan  or  forbearance  of  money,  and  that 
when  money  is  due,  it  shall  draw  a  certain  rate  of  interest  in 
the  absence  of  any  agreement  on  the  subject;  and  such  interest 
lias  been  usually  awarded  as  damages,  on  unliquidated  claims.' 

Thus,  in  New  York,  interest  at  the  legal  rate  is  recoverable 
on  rent  due,  although  it  was  payable  in  wheat  and  services.* 

6  Bander  v.  Bander,  7  Barb.  (N.  Y.),  560;  French  v.  Kenedy,  Id.,  452; 
Bannister  v.  Roberts,  35  Me.,  75;  Adairs  v.  Wright,  14  la.,  22. 

7Edw.  on  Bills  and  Notes,  109,et8eq.;  Gray  v.  Briscoe,  G  Bush  (Ky.),  687; 
Brewsterv.  WakeHold.  22  How.  (U.  S.),  118;  3  Pars,  on  Con..  104;  U.  S  Bank 
V.  Chapin,  9  Wend.,  471 ;  Lendwick  v.  Huntinj^er,  5  W.  &  S.,  51 ;  Lucas  et  al. 
V.  Pickel.  20  la.,  490;  Farle  v.  Adams,  3  Kans.,  515;  Hopkins  v.  Crittenden, 
10  Tex.,  189,  where  the  court  held  in  an  action  brouR'ht  upon  a  promissory 
note  stipulating  for  "ten  per  cent  interest* from  date,"  that  the  note  bore 
interest  at  that  rate  after  it  became  due,  although  the  legal  rate  in  the  absence 
of  the  stipulation  would  be  only  eight  per  cent,  and  in  case  of  stipulation  not 
exceochng  twelve  per  cent.  See,  also.  Cox  v.  Smith.  1  Nev.,  101;  Hand  v. 
Armstrong,  18  la.,  325;  Lucas  et  al.  v.  Picket,  20  la.,  490;  Kilgore  v.  Powers, 
5  Blackf.,  22;  Kaler  v.  Smith,  2  Cal.,  597;  Morgan  v.  Jones.  Eng.  L.  &  E., 
4.54;  Payne  v.  Clark,  23  Mo.,  259;  Phiney  v.  Baldwin,  16  111.,  108.  But  see 
contra,  Kitchen  v.  Branch  Bk.  of  Mobile,  14  Ala.,  233;  Spalding  v.  Lord,  19 
Wis.,  533. 

^  Ludwich  V.  Hutzinger,  5  Watts  &  S.,  51 ;  Washington  v.  Planter's  Bank. 
1  How.  (Miss.),  2.30;  Jones  v.  MaUory,  22  Conn.,  386;  Selloch  v.  French,  1 
Conn.,  33;  Whitworth  y,.  Hart,  22  Ala.,  N.  S.,  343;  Godwin  v.  McGehee,  19 
Ala.,  468,  where  it  is  held  a  just  compensation  and  to  follow  as  an  incident. 
See,  also,  in  Illinois  Ford  v.  Hixon,  49  111.,  142. 

'Van  Rensselaer  v.  Jewett,  5  Denio.,  135. 


NOX-PATME]S'T  OF  MOXET.  195 


Interest  at  Place  of  Payment. 


So  in  Iowa,  interest  is  allowed  on  unliquidated  suras  due.'" 
"Where  a  note  specifies  no  time  of  payment,  it  is  due  imme- 
diately, and  draws  interest  from  date;"  where  it  is  payable  on 
demand  it  draws  interest  from  the  time  the  demand  is  made, 
unless  it  provides  for  the  payment  of  interest  from  date  in 
case  of  failure  to  pay  on  demand,  in  which  case  it  draws  inter- 
est from  date.'=  And  parties  may  stipulate  for  interest  from 
the  date  of  a  note,  as  a  penalty  for  the  non-payment  of  money 
at  a  specified  time,  even  where  the  note  would  otherwise  draw 
no  interest;"  or  for  tlie  payment  of  interest  before  the  matu- 
rity of  the  obligation." 

§  214.  Interest  at  the  Place  of  Payment —The  inter- 
est in  cases  where  none  is  specified  in  the  contract  is  calcu- 
lated according  to  the  rate  at  the  place  where  the  obligation 
is  made  payable;"  but  if  no  place  of  payment  is  designated, 
the  interest  at  the  place  where  it  is  made  governs." 

And  where  an  indorser  is  compelled  to  advance  money  on 
account  of  the  indorsement,  he  is  entitled  to  interest  at  the 
rate  which  prevails  at  the  ])lace  where  the  advance  is  made." 

And  where  a  note,  signed  and  indorsed  in  one  state  and 
sent  to  the  agent  of  the  maker,  to  be  delivered  in  another 
state  in  payment  of  a  debt  due  by  the  maker,  is  legally  made 
in  the  latter  state,  the  contract  of  the  indorser  is  governed 
by  the  law  of  that  state;  "  and  the  interest  is  governed  accord- 
ingly- 

'°  Mote  V.  Ttie  Cicago,  etc..  R.  Co..  27  la.,  22. 

"  Wenman  v.  Mohawk  Ins  ,  Co.,  13  Wend.,  267;  Rens.  Glass  Factory  v 
Reid,  5  Cow..  587. 

"  Rens.  Glass  Factory  v.  Reid.  5  Cow..  600,  opinion  by  Spencer,  senator; 
Francis  v.  Hastleman,  4  Bibb,  282;  Patrick  v.  Clay,  Id.,  246. 

'3  Daggett  V.  Pratt.  15  Mass..  177;  Homer  v.  Hunt,  1   Blackf ,  213;  WU- 
son  V.  Dean,  10  la.,  432. 

'*  Catlin  V.  Lyman.  16  Vt.,  44;  Bannister  v.  Roberts,  aS  Me,,  75. 

's  Scofield  V.  Day,  20  John.,  102;  Archer  v.  Dunn,  2  Watts  &  S.,  .327. 

'«Swett  V.  Dodge,  4  Smedes  &  M.,  (Miss.),  667.     Edwards  on  Bills,  714. 

'7  Winthrop  v.  Carleton,  12  Mass.,  4. 

'8  Cook  V.  Litchfield,  5  Sand.,  3:30;  Hyde  v.  Goodnow,  3  Comst.,  266. 


196  THE  LAW  OF  DAMAGES. 

Interest  In  Different  States. 

On  tliis  subject  Cliancollor  Kent,  remarks:  "  The  law  of  the 
place  where  the  contract  is  nuule,  is  to  (leterinine  the  rate  of 
interest  where  the  contract  specifically  gives  interest;  and  this 
will  he  the  case  thongh  the  loan  be  secured  by  a  mortgage  on 
lands  in  another  State,  unless  there  be  circumstances  to  show 
that  the  parties  had  in  view  the  law  of  the  latter  jjlace  in 
respect  to  interest.  When  that  is  the  case  the  rate  of  interest 
of  the  ])lace  of  payment  is  to  govern."  " 

Although  the  law  of  the  place  where  the  contract  is  made 
limits  the  rate  of  interest  below  the  law  of  the  place  where 
the  ])ayinent  of  the  money  is  to  be  made,  and  even  makes  the 
contract  void  for  usury,  ^Yhon  it  stipulates  for  more  than  the 
legal  rate;  still,  the  weight  of  authority  sustains  a  contract 
made  in  such  a  case,  payable  in  another  state,  where  a  higher 
rate  is  allowed,  when  such  higher  rate  of  interest  is  provided 
for  in  the  contract." 

So,  again,  it  was  held  that  where  the  instrument  contains 
no  stipulation  in  reference  to  interest,  but  only  ]»rovides  for 
the  payment  of  money,  interest  may  be  allowetl  by  way  of 
damages  for  a  foilure  to  pay,  and  the  law  of  the  place  of  pay- 
ment furnishes  the  rate  of  interest  which  is  allowed  in  such 
cases.^'  These  general  principles  apply  as  well  to  checks, 
bills  of  exchange,  and  all  other  contracts  for  the  payment  of 
money. 

§  215.  Interest  in  Different  States. — It  will  be  per- 
ceived that  the  amount  recoverable  as  damages  on  account  of 

•9  2  Kent's  Com.,  460.    See,  also.  Story  on  Conf.  of  Laws,  §  305. 

=»  Andrews  v.  Pond,  13  Peters  (U.  S.),  65;  Peck  v.  Mayo,  14  Vt..  33;  Par- 
son's Merc.  L..  321;  Butters  v.  Olds,  11  la.,  1;  Arnold  v.  Potter.  22  Id..  194; 
where  it  is  held  that  citizens  of  diiFerent  states  may  contract  for  the  payment 
of  a  rate  of  interest  allowed  by  the  law  of  the  state  in  which  thq  maker 
resides,  and  in  which  property  mort^ged  to  secure  the  note  is  situated,  even 
if  the  rate  would  be  usurious  in  the  state  where  the  note  was  made,  or  in  the 
state  where  the  note  is  by  its  terms  made  payable. 

^'  Story's  Conf.  L.,  §  296;  Peck  v.  Mayo,  14  Vt.,  33;  Bushly  v.  Camac, 
4  Wash.  C.  C,  296;  Gordon  v.  Phelps,  7  J.  J.  Mar.,  619. 


NON-PAYMENT  OF  MONEY.  197 

Interest  iu  DifEerent  States. 

interest  in  such  cases,  would  depend  on  the  rate  of  interest  at 
the  place  of  payment." 

These  rates  vary  in  difierent  states,  and  hence  it  is  necessary 
to  understand  the  legal  interest  at  the  place  of  payment,  in 
order  to  determine  the  measure  of  damages.      Besides  this,  it 

^  We  annex  for  the  convenience  of  the  profession,  the  follovdn^  condensed 
statement  of  the  rates  of  interest  in  the  various  States  and  territories,  and  the 
penalties  imposed  for  usury : 

Arkansas. — The  legal  rate  of  interest,  where  no  rate  is  mentioned,  is  six 
per  cent.  Parties  may  contract  for  any  rate  not  exceeding  ten  per  cent. 
Usurious  contracts  are  void.    Dig.  Ark.  Stat.,  1858,  p.  622. 

Alabama. — Interest  eight  per  cent.  Contract  for  higher  rate  not  void 
except  as  to  interest.     Rev.  Code,  1867,  p.  406. 

Arizona. — Where  no  rate  is  agreed  upon  interest  is  ten  per  cent.  Parties 
may  stipulate  for  any  rate.     Compiled  Laws  1871,  p.  538. 

California.— U  there  is  no  contract  fixing  a  higher  rate,  ten  per  cent  is 
allowed.  But  parties  may  contract  for  any  rate,  and  even  for  compound 
interest.  Judgments  can  draw  only  seven  per  cent  under  any  circumstances. 
Civil  Code,  §§  1917, 1918,  1919,  1920. 

Connecticut. — Legal  rate  seven  per  cent.  In  usurious  contracts,  the  prin- 
cipal can  be  recovered  with  seven  per  cent  interest,  and  all  in  excess  of  legal 
interest  that  has  been  paid  is  forfeited  to  any  party  who  may  sue  therefor 
within  one  year.     Revision  1875,  p.  351. 

Delaware. — Legal  rate  six  per  cent.  Whoever  takes  more  forfeits  a  sum 
equal  to  the  amount  loaned — half  to  the  state,  half  to  the  prosecutor.  Rev. 
Code,  1852,  p.  18:1 

District  of  Columbia.— Contracts  for  more  than  six  per  cent  are  void,  and 
the  \'iolation  of  the  law  subjects  the  party  to  a  penalty  of  treble  the  amount 
of  money  lent  or  contracted  for;  one-half  to  go  to  the  United  States,  a.nd 
the  other  to  any  person  who  shall  sue  for  it. 

Florida. — Interest  under  express  contract  eight  per  cent.  Usury  is  pun- 
ishable by  indictment  and  forfeiture  of  all  the  interest.  Where  no  interest 
is  stipulated  for,  six  per  cent.    Thompson's  Dig.,  p.  234-5. 

(reo/-(irirt.— Legal  interest  seven  per  cent  where  no  stipulation  is  otherwise 
made.     Parties  may  contract  for  any  rate  in  writing.     Code  1873,  p.  362. 

Illinois. — Six  per  cent  is  allowed,  where  no  rate  is  specified.  Parties  may 
contract  for  the  payment  of  not  exceeding  ten  per  cent.  Usury  forfeits  inter- 
est.    Rev.  Stat,  1874,  p.  614. 

Indiana. — Interest  allowed  six  per  cent.  Usury  does  not  vitiate  the  con- 
tract. The  principal  can  only  be  recovered.  Gavin  &  Hord,  Stat.  Ind  ,  p. 
406,  407. 

Iowa. — Legal  rate  where  no  other  is  agreed  upon  six  per  cent;  but  parties 
may  agree  upon  any  rate  not  exceeding  ten  per  cent.    Illegal  interest  paid, 


198  THE  LAW  OF  DAMAGES. 


Interest  in  DifEeient  States. 


is  important  to  know  the  provisions  of  the  statute  law  on  this 
subject  in  the  difterent  states,  as  in  several  of  them  the  conse- 
quences visited  upon  the  payee  in  case  of  usurious  interest,  is 
the  forfeiture  of  the  interest,  and  sometimes  even  of  the  prin- 
cipal. We  therefore  deem  it  advisable  to  state  in  a  note  tlie 
rate  of  legal  interest  in  different  states,  with  the  penalties  that 

may  be  recovered  back  and  judgments  bear  the  same  rate  of  interest  as^  the 
contract  on  which  they  are  rendered  not  exceeding  ten  per  cent.  If  the 
execution  is  stayed,  even  where  it  provides  for  a  less  rate  of  interest,  it  draws 
ten  per  cent.  If  more  than  ten  per  cent  interest  has  been  contracted  for, 
there  is  a  forfeiture  of  ten  per  cent  per  annum  to  the  school  fund,  of  the 
county  in  which  the  suit  is  brought,  and  the  plaintiff  can  recover  only  for  the 
principal,  without  interest  or  costs.    Code  1873,  p.  377,  378. 

Kentucki/.— Legal  rate  six  per  cent,  unless  otherwise  contracted  for.  Par- 
ties may  contract  in  writing  for  any  rate  not  exceeding  ten  per  cent.  Usury 
is  attended  with  a  forfeiture  of  all  interest.     Gen.  Stat.  1873,  pp.  562,  565. 

Louisiana.— Interest  five  per  cent.  By  agreement  not  exceeding  eight 
per  cent.  Bank  rates  six  per  cent.  Penalty  for  usury,  forfeiture  of  all  the 
interest.  Usurious  interest  when  paid  may  be  recovered  back  within  twelve 
months.     Civ.  Code  (Fuqua).  p.  393. 

Maine.— Legal  rate  of  interest  in  the  absence  of  any  agreement,  is  six  per 
cent.     Rev.  Stat.,  1871,  p.  391. 

Mari/land.— The  constitution  as  well  as  the  statute  provide  for  six  per 
cent  interest,  and  any  excess  only  is  forfeited.    Code  (1865),  Vol.  1,  p.  696. 

Massachusetts.— Legal  interest  six  per  cent.  But  parties  may  contract  in 
writing  for  any  rate  of  interest.     Sup.  Gen.  Stat.  (1873),  p.  539. 

.¥ic^).(7an.— Interest  seven  per  cent,  with  authority  to  agree  upon  any  rate 
not  exceeding  ten  per  cent.  Contracts  are  only  void  for  the  excess.  Com- 
piled Laws  (1871),  p.  540. 

Montana.— Legal  rate  ten  per  cent.  But  parties  may  stipulate  in  writing 
for  any  higher  rate.    Codified  Stat.,  7  Sess.,  pp.  497,  498. 

Minnesota.— Legal  rate  seven  per  cent  where  no  other  rate  is  agreed  upon. 
But  parties  may  contract  in  writing  to  pay  any  rate  not  exceeding  twelve 
per  cent.     Stat,  at  Large  (1873),  p.  711. 

Mississippi.— Legal  interest  six  per  cent.  But  parties  may  contract  in 
writing  to  pay  any  rate  not  exceeding  10  per  cent.  Rev.  Code  (1871),  §§ 
2279,  2282. 

Missouri.— Legal  rate  six  per  cent.  Parties  may  agree  upon  any  other 
rate  not  exceeding  ten  per  cent.  Usury  works  a  forfeiture  of  the  interest  to 
the  use  of  the  county  in  which  the  suit  is  brought.  Wagner's  Mo.  Stat., 
Vol.  1,  pp.  782,  783. 

New  Hampshire.— Legal  rate  six  per  cent;  and  if  more  is  taken  the  party 


^^ON-PAYMENT  OF  MONEY.  199 

Money  means  Coin. 

are  imposed  in  case  of  a  violation  of  the  statutes   in   this 
respect. 

§  216.  Money  means  Coin. — When  a  note  or  other  in- 
strument for  the  payment  of  money  expresses  a  definite  sum 
to  be  paid  in  money,  this  is  understood  to  mean  payment  in 

coin;  as  this  is,  in  the  absence  of  express  statutes  on  the  sub- 

• 

receiving  it  forfeits  three  times  the  araount  taken.      Gen.  Stat.  (1867), 
p.  4313. 

New  Jersey. — Legal  rate  seven  per  cent.  The  amount  of  the  principal 
can  only  be  recovered.    Rev.  Stat.  (1874),  p.  356. 

New  York. — Legal  rate  seven  per  cent.  All  contracts  for  more  are  void. 
The  usurer  forfeits  both  principal  and  interest.  .  Statutes  at  Large  (Edmonds), 
Vol.  1,  pp.  725,  726. 

North  Caroliana. — Legal  rate  6  per  cent.  Eight  per  cent  may  be  con- 
tracted for  in  ■wT.'iting  for  the  loan  of  money.  No  recovery  can  be  had  of 
more  than  these  rates.    Brattle's  Revisal,  p.  835. 

Nebraska. — Legal  rate  10  per  cent.  But  any  rate  not  exceeding  12  per 
cent  may  be  stipulated  for  by  contract.  In  case  of  usury  only  the  principal 
-\vithout  interest  can  be  recovered.     Gen.  Stat.,  pp.  446.  447  (1873). 

Ohio. — Legal  rate  6  per  cent.  Excess  of  interest  paid  may  be  recovered 
back.    Rev.  Stat.,  pp.  742,  744. 

Pennsiflvania. — Legal  rate  6  per  cent.  Usurious  interest  cannot  be  recov- 
ered; and  if  paid  can  be  recovered  back,  if  sued  for  within  6  months.  Canal 
and  railroad  companies  may  borrow  money  at  higher  rates.  Br.'s  Purd.'s 
Dig.,  p.  803. 

Rhode  Island. — Interest  6  per  cent  when  not  otherwise  stipulated.  Gen. 
Stat.  (1872),  p.  270. 

South  Carolina. — Legal  i-ate  7  per  cent.  Former  acts  relating  to  usury 
repealed,  and  it  would  appear  that  parties  may  make  any  contract  in  refer- 
ence to  interest.     Rev.  Stat.  (1873).  p.  318. 

Tennessee.  —Interest  generally  6  per  cent.  But  by  agreement  in  writing, 
parties  may  contract  for  any  rate  of  interest  not  exceeding  10  per  cent.  The 
usurer  is  Hable  to  a  penalty  of  one  himdred  dollars.  Act  1869-70,  Ch.  69, 
§§  1.  2,  3,  4. 

Texas. — Legal  rate  8  per  cent.  But  parties  may  agree  upon  any  rate  as 
high  as  12  per  cent.  When  more  is  stipulated  for,  no  interest  can  be  recov- 
ered.   Pascal's  Dig.,  pp.  665,  666. 

Vermont. — Legal  rate  6  per  cent.  Interest  paid  beyond  that  rate  may  be 
recovered  back.  Usury  forfeits  the  excess  of  legal  interest.  Gen.  Stat. 
(1863),  pp.  507,  579. 

Virginia. — Legal  rate  6  per  cent,  or  8  per  cent  by  contract  in  writing. 
AU  contracts  for  more  are  void  for  the  excess.     But  banks  may  take  interest 


200  THE  LAW  OF  DAMAGES. 

Legal  Tender  Acts  Constitutional. 

ject  to  the  contrary,  the  only  legal  tender."  Hence,  the  lawful 
holder  of  a  promissory  note  or  any  other  agreement  for  the 
payment  of  money,  may  at  common  law  require  the  payment 
of  the  principal  and  interest  in  gold  or  silver  coin.  But  where 
the  instrument  provides  for  payment  in  currency  or  Lank  notes, 
the  holder  can  only  recover  according  to  its  terms;  and  a 
tender  of  cui-rency  or  bank  notes  as  stipulated,  to  the  nominal 
amount,  would  be  a  good  tender;  and  the  measure  of  damages 
on  a  breach  would  be  the  value  of  currency  or  notes  measured 
by  the  standard  of  a  dollar  in  coin. 

§  217 .    Le^al  Tender  Acts  Constitutional.— By  an  Act 

of  Congress  of  February  25,  1862,  it  was  declared  that  certain 
treasury  notes  to  be  issued  by  the  United  States  by  virtue  of 
the  Act,  should  be  a  legal  tender  in  payment  of  debts." 

And  a  similar  provision  was  incorporated  into  the  subse- 
quents  acts  of  Congress  relating  to  the  currency,  of  March 
3, 1863,"  and  June  30,  1864."  These  are  usually  denominated 
the  "Legal  Tender  Acts."  Soon  after  the  passage  of  these 
acts  numerous  controversies  arose  in  various  States  in  refer- 
ence to  their  constitutionality,  and  the  power  of  Congress  to 
make  such  laws.      And  the   State   courts  generally  on  this 

on  loans,  at  the  rate  of  two-thirds  of  one  -per  cent.,  for  thirty  days,  and  tliis 
may  be  received  in  advance.     Code  (1873),  p.  977. 

Wisconsin. — When  no  other  rate  is  agreed  upon,  7  per  cent  is  the  legal 
rate;  but  parties  may  contract  for  any  rate  not  exceeding  10  per  cent.  If 
more  is  taken  three  times  the  excess,  so  paid,  may  be  recovered  back,  if 
suit  is  brought  therefor  within  one  year,  and  all  notes,  bills,  bonds,  etc., 
providing  for  a  larger  rate  of  interest  are  void.  Taylor's  Stat.,  Wis.  (1871), 
p.  838. 

West  Virginia. — Legal  interest  generally  6  per  cent.  Contracts  for  more 
are  void.  If  a  person  takes  more  he  forfeits  double  the  amount  taken.  Code 
(1860),  pp.  624,  625. 

^=  Gwin  v.  Breedlove,  2  How.  (U.  S.),  29. 

=3  Rev.  Stat.,  U.  S.  (187.5),  p.  712,  Ch.  39,  §  3589;  Chap.  33,  U.  S.  Stat,  at 
Large,  Vol.  12,  p.  345,  Id.,  §  3590. 

24  U.  S.  Stat,  at  Large,  Vol.  12,  p.  709. 

»5  U.  S.  Stat,  at  Large,  Vol.  13,  p.  218. 


NON-PAYMENT  OF  MONEY.  201 

Antecedent  Debts— Constitutional— Agreement  to  pay  Gold  or  S  ilver,  etc. 

question,  sustained  the  constitutionality  of  the  several  acts, 
in  respect  to  the  legal  tender  clauses."" 

§  2 1 8.    Applied  to  Antecedent  Debts— Constitutional. 

—  These  decisions  were  authoritatively  sustained  by  the 
Supreme  Court  of  the  United  States  after  a  very  full  con- 
sideration of  the  question;  and  the  constitutionality  of  these 
statutes  was  affirmed  by  the  highest  tribunal  in  this  coun- 
try." 

And  they  not  only  settled  the  general  question  of  the  consti- 
tutionality of  the  legal  tender  clauses, in  said  acts;  but  also  that 
such  clauses  were  constitutional  so  far  as  the  same  related  to 
antecedent  debts,  and  that  they  applied  to  contracts  made 
before  as  well  as  after  the  passage  of  the  acts."' 

§  219.  Agreement  to  pay  in  Gold  or  Silver  Coin;  or 
U.  S.  Gold  or  Silver.— Another  question  presented  to  the 
courts  about  the  same  time  as  the  foregoing  one,  was  in  refer- 
ence to  contracts  to  pay  in  gold  or  silver  coin;  and  whether 
the  provisions  of  the  legal  tender  acts,  applied  to  such  cases. 

In  Iowa,  in  1864,  the  question  was  presented  to  the  Supreme 

^  See  elaborate  opinions  in  the  cases  of  The  Metropolitan  Bank  and  Shoe 
&  Leather  Bank  v.  Van  Dyck;  and  Mayer  v.  Roosevelt,  27  N.  Y.,  400; 
Kunpton  v.  Bronson,  45  Bai-b.  (N.  Y.),  618;  Lewis  v.  The  N.  Y.  Cent.  R. 
Co.,  6  Am.  L.  Reg.  (N.  S.),  703;  Lick  v.  Faulkner,  25  Cal.,  404;  Maynard  v. 
Newman,  1  Nev.,  271;  Shallenbarger  v.  Brmton;  Mervine  v.  Saitor;  Davis  v. 
Bm-ton;  Kroener  v.  Calhoun;  Sanfbrd  v.  Hayes;  Graham  v.  Marshal;  and 
Laughhn  v.  Harvey.  52  Pa.  St.,  9;  Wood  v.  Bullens,  6  Allen  (Mass.),  516; 
George  v.  Concord,  45  N.  H.,  434;  Breitenbach  v.  Turner,  18  Wis.,  140; 
Van  Husen  v.  Kanouse,  13  Mich.,  303;  Carpenter  v.  Northfield  Bank,  39  Vt., 
46;  Appel  v.  Woltmann,  38  Mo.,  194. 

=7  Knox  V.  Lee;  Parker  v.  Davis,  12  WaUace  (U.  S.),  457;  Dooley  v.  Smith, 
13  WaUace  (U.  S.)  604. 

=^8  The  Supreme  Court  while  differently  constituted  a  short  time  before  the 
decisions  of  the  cases  last  cited,  had  held  that  the  clause  making  the  currency 
provided  for  by  the  acts  a  legal  tender,  did  not  apply  to  contracts  made 
before  the  passage  of  the  statutes,  and  that  as  to  such,  they  were  unconstitu- 
tional and  void.  Hepburn  v.  Griswold,  8  Wallace,  603;  affinnmg  Hepbm-n 
V.  Griswold,  2  Duval,  20. 


202  THE  LAW  OF  DAMAGES. 


Agreement  to  pay  in  Gold  or  Silver  Coin,  etc. 


Court  of  that  State.     The  action  was  based  upon  a  note  paya- 
ble in  "  U.  S.  gold." 

"Wright,  C.  J.,  in  delivering  the  opinion  of  the  court, 
remarks:  "The  incorporation  of  the  words  '  U.  S.  gold'  into 
the  note  or  contract  did  not  change  or  increase  the  obligation 
of  the  maker  to  pay  in  the  medium  or  currency  declared  by- 
law to  be  a  legal  tender  in  the  payment  of  debts.  That  is  to 
say,  if  these  words  had  not  been  used,  the  maker,  but  for  the 
Act  of  Congress  making  treasury  notes  a  legal  tender,  [Act 
Feb'y  25,  1862,]  would  have  been  compelled  to  pay  gold  or 
silver;  and  this  would  have  been  his  legal  duty,  whether  he 
received  from  the  creditor  gold,  silver,  bank  paper,  horses,  or 
other  consideration.  For,  prior  to  such  legislation,  all  debts 
public  and  private,  had  to  be  paid  in  what  was  called  the 
hard  money  medium;  and  no  creditor  was  bound  to  receive 
anything  else."*^  It  was  held  in  this  case  that  a  tender  of  the 
United  States  Treasury  legal  tender  notes,  in  payment  of  the 
debt  was  a  good  tender.  But,  this  decision,  with  others  of  the 
same  kind,^"  seems  to  have  been  overruled  in  the  Supreme 
Court  of  the  United  States  as  we  shall  presently  see. 

§  220.  In  an  action  in  JS'ew  York,  on  an  agreement  to 
pay  "  in  gold  or  silver  coin,  lawful  money  of  the  United 
States;"  it  was  held  by  the  Court  of  Appeals  of  that  State, 
that  such  an  obligation  would  be  satisfied  by  the  tender  of 
legal  tender  notes  at  their  nominal  value."  But  the  case  was 
taken  to  the  Supreme  Court  of  the  United  States,  and  reversed 
on  two  grounds : 

1.  Because  by  various  acts  of  Congress  the  contract  paya- 
ble in  gold  and  silver  coin  lawful  money  of  the  United  States, 

=9  Wamebold  v.  Schlicting,  16  la.,  243. 

30  Theyer  v.  Hedges,  23  Ind.,  141;  Whetstone  v.  Coleby,  36  111.,  328; 
Humphrey  v.  Clement,  44  111.,  299;  Troutman  v.  Gowiiig,  16  la.,  415,  where 
it  was  held  that  a  contract  to  pay  in  gold  and  silver  coin,  would  be  satisfied 
by  a  payment  of  legal  tender  notes. 

3»  Rodes  v.  Bronson,  34  N.  Y.,  649. 


NON-PAYMENT  OF  MONEY.  203 

Agreement  to  pay  in  Gold  or  Silver  Coin,  etc. 

was  equivalent  to  one  to  deliver  an  equal  weight  of  bullion  of 
the  same  fineness  as  required  by  law  for  the  coin. 

2.  Because,  as  there  were  two  kinds  of  money  at  the  time 
the  tender  was  made,  both  of  which  were  by  law  a  legal  ten- 
der, but  which  were  in  actual  value,  far  from  equivalent  to 
each  other,  a  contract  stipulating  for  payment  in  the  most 
valuable  kind,  namely,  gold  and  silver,  could  only  be  satisfied 
by  such  a  payment." 

An  action  was  brought  for  a  breach  of  the  covenant  to  pay 
rent,  contained  in  a  lease  of  property  in  the  City  of  Balti- 
more. The  covenant  provided  for  the  payment  of  an  "annual 
rent  of  fifteen  pounds  current  money  of  Maryland,  payable  in 
English  golden  guineas,  weighing  five  pennyweights  and  six 
grains,  at  thirty-five  shillings  each,  and  other  gold  and  silver, 
at  their  present  weights  and  rates,  established  by  act  of 
Assembly." 

In  delivering  the  decision  of  the  majority  of  the  Supreme 
Court  of  the  United  States,  Chase,  C.  J.,  said :  "  When  it 
appears  to  be  the  clear  intent  of  a  contract  that  payment 
or  satisfaction  shall  be  made  in  gold  and  silver,  damages 
should  be  assessed  and  judgment  entered  accordingly.  It 
follows  that  in  the  case  before  us  the  damages  should  have 
been  assessed  at  the  sum  agreed  to  be  due,  with  interest,  in 
gold  and  silver  coin;  and  judgment  should  have  been  entered 
in  coin  for  that  amount.'"^ 

And  in  a  subsequent  case  in  the  same  court,  where  in  an 
action  on  a  lease  for  rent,  the  lease  provided  for  the  payment 
of  an  annual  rent  of  a  specified  number  of  ounces,  penny- 
weights and  grains  of  pure  gold,  in  coined  money;  it  was 
held,  that  the  judgment  should  be  entered  for  coined  dollars 

y  Bronson  v.  Rodes,  7  WaU.  (U.  S.),  229.  See.  also,  Trebilcock  v.  Wil- 
son, 12  Wall.,  687,  where  the  same  principle  is  applied  to  a  promissory  note 
payable  in  specie.  See,  also,  Chisholm  v.  Arrington,  4^3  Ala.  (N.  S.),  610; 
McGoon  V.  Shirk,  54  111.,  408;  Holt  v.  Given,  43  Ala.,  (N.  S.),  612. 

33  Butler  V.  Horwitz,  7  Wall.,  (U.  S.),  258;  Miller,  J.,  dissenting. 


204  THE  LAW  OF  DAMAGES. 


Agreement  to  pay  in  Gold  or  Silver  Coin,  etc. 


and  parts  of  dollars,  instead  of  treasury  notes  equivalent  in  mar- 
ket value  to  the  value  in  coined  money  of  the  stipulated  weights 
of  pure  gold.'* 

§  22 1.  In  most  civilized  countries  there  are  different  kinds 
of  money,  having  different  relative  values.  And  where  there 
is  a  contract  for  the  payment  of  a  particular  kind  of  money,  it 
will  be  enforced  by  the  courts. 

And  where  an  action  was  brought  on  a  bill  of  exchange, 
payable  in  the  United  States  in  gold  dollars,  it  was  held  that 
a  judgment  thereon  should  be  for  gold  dollars.'' 

So,  the  almost  uniform  current  of  decisions  in  California, 
under  statutes  wdiich  required  judgments -to  be  satisfied  in  the 
coin,  or  currency  stipulated  in  the  contract,  is  in  harmony 
with  the  decisions  of  the  United  States  courts  above  referred 
to.'"     And  the  same  doctrine  is  held  in  Kevada." 

But,  in  California,  where  the  defendant  had  wrongfully  sold 
real  estate  belonging  to  the  plaintiff,  and  of  the  value  of 
$5,200  in  gold;  it  was  held,  that  the  specific  money  act  did 
not  apply,  and  that  a  judgment  in  such  a  case  would  be  satis- 
fied by  the  payment  of  the  amount  in  legal  tender  notes.-* 

In  Massachusetts,  it  has  been  held,  that,  where  coin  is  paid 
on  an  ordinary  debt,  without  any  special  contract  as  to  the 
rate  at  which  it  is  to  be  received,  it  will  pay  no  more  than 
an  equal  nominal  amount  in  legal  tender  currency.''     And,  in 

34  Dewing  v.  Sears,  11  WaU.,  (U.  S.),  379. 

35  Kellog'g  V.  Sweeney,  46  N.  Y.,  291.  See,  also,  Chrysler  v.  Renois,  43 
N.  Y.,  209;  Philips  v.  Speyers,  49  N.  Y.,  653;  Independent  Ins.  Co.  v. 
Thomas,  104  Mass.,  192;  Warren  v.  Franklin  Ins.  Co.,  104  Mass.,  518;  Kup- 
fer  V.  The  Bank  of  Galena,  34  lU.,  328;  Dalton  v.  Paillaret,  52  Pa.  St.,  109; 
Seeling  v.  The  Atlantic  Mut.  Ins.  Co.,  45  Barb.,  510. 

36Carpentier  v.  Atherton,  25  Cal.,  564;  Lane  v.  Gluckauf,  28  Cal.,  288; 
Spencer  v  Prindle,  28  Cal.,  276;  McComb  v.  Reed,  28  Cal.,  281 ;  Harding  v. 
Cowing,  28  Cal.,  212;  Reese  v.  Steams,  29  Cal.,  273;  Tarpy  v.  Shepard,  30 
Cal.,  180;  Pratt  v.  Stearns,  31  Cal.,  78. 

37  Clarke  v.  Nevada  Land  &  Mining  Co.,  6  Nev.,  203. 

38  Price  V.  Reeves,  28  Cal.,  457. 

39  Bush  V.  Baldrey,  93  Mass.  (11  AUen),  367. 


NOIiT-PATMENT  OF  MONEY.  205 


Propositions  Deducible  from  Decisions— Contract  of  Affreightment,  etc. 


an  action  for  the  conversion  or  negligent  loss  of  United  States 
coin,  it  is  a  controverted  question  whether  the  judgment 
should  be  for  the  value  of  the  coin  in  legal  tender  notes,  or 
for  the  amount  of  the  coin  itself  in  specie.  On  this  question 
it  seems  the  courts  of  New  York  and  Massachusetts  differ. 
The  former  holding  in  favor  of  a  judgment  for  the  coin 
itself;"  the  latter,  its  value  computed  in  treasury  notes." 

§  222.    Propositions  Deducible  from  the  Decisions.— 

From  the  foregoing  the  following  propositions  are  deducible: 

1.  That  where  a  contract  provides  for  the  pa^^ment  of 
money  within  the  United  States,  and  contains  no  stipulation 
as  to  the  kind  of  money,  it  will  be  satisfied  by  a  tender  of  the 
nominal  amount  in  legal  tender  notes;  and  the  measure  of 
damages  in  an  action  on  such  a  contract  is  the  nominal 
amount  due  in  legal  tender  notes. 

2.  That  if  gold  or  silver  coin  is  applied  in  payment  of  such 
a  claim,  in  the  absence  of  a  special  contract  in  relation  thereto, 
it  will  be  applied  at  its  nominal  value,  and  it  satisfies  to  the 
same  extent  and  no  more,  as  a  payment  of  an  equal  nominal 
amount  in  legal  tender  notes. 

3.  That  where  a  contract  provides  specifically  for  payment 
in  gold  or  silver  coin,  the  coin  must  be  paid,  and  damages  for 
the  breach  of  such  a  contract  should  be  assessed  in  coin  for 
the  nominal  amount;  and  judgment  should  be  rendered  for 
the  coin  stipulated,  and  not  for  its  equivalent  value  in 
treasury  legal  tender  notes;  and  such  a  judgment  can  only  be 
satisfied  by  specie  payment.^'' 

§  223.    Contract  of  AfFreightnient— Sterling  Money. 

— And,  where  a  contract  of  afifreightment  provided  for  the 


4°  Kellogg  V.  Sweeney,  46  N.  Y.,  291. 

4'  Gushing  v.  Wells.  Fargo  &  Co.,  98  Mass.,  550. 

42  Where  gold  and  silver  coin  are  converted,  the  measure  of  damages  is 
the  market  value  of  the  coin,  and  the  bailor  may  recover  what  has  been 
realized  on  a  sale  by  the  bailee.    Bank  v.  Burton,  27  Ind.,  426. 


206  THE  LAW  OF  DAMAGES. 


When  Parties  Stipulate  as  to  Interest  at  a  Particular  Place. 


payment  of  so  many  pounds,  shillings,  and  pence,  in  tlie  ster- 
ling money  of  Great  Britain,  in  coin  in  New  York,  on  the 
delivery  of  the  property  there,  it  was  held,  that  tlie  owners  of 
the  vessel  might  recover,  on  a  libel  in  personam,  what  the 
amount  as  specified  of  British  coin,  was  worth  in  New  York,  in 
gold  and  silver  coin  of  the  United  States,  on  the  day  of  the 
arrival."' 

§  224.  When  Parties  Stipulate  as  to  Interest  at  a 
Particular  Place.— We  have  stated  that  the  damages  recov- 
erable for  the  non-payment  of  a  promissory  note  is  the  prin- 
cipal and  interest  therein  stipulated  to  be  paid,  not  exceeding 
the  legal  rates,  and  excepting  those  cases  where  there  may  be 
a  forfeiture  of  interest  or  principal  under  the  statutes  against 
usury;  and  that  in  the  absence  of  any  stipulation  in  reference 
to  interest,  then  the  legal  rate  of  interest  at  the  time  and  place 
of  payment  should  govern  from  the  time  it  became  due;  and 
where  no  place  of  payment  is  specified,  then  interest  at  the  rate 
provided  at  the  place  of  making  the  contract.  But  it  should 
be  further  stated  that  the  parties  may  stipulate  for  the  legal 
rate  of  interest  at  either  place,  and  thus  determine  the  inter- 
est that  may  be  recovered." 

And  where  a  suit  is  brought  on  a  contract  in  another  State 
than  the  place  where  the  contract  is  payable,  the  rate  of  inter- 
est expressed  in  the  note,  not  exceeding  the  rate  where  pay- 
able, may  be  recovered  though  it  exceeded  the  rate  of  interest 
where  the  suit  is  brought. 

And  where  the  defendant,  a  resident  of  Iowa,  executed  his 
promissory  note  in  that  state,  and  dated  there,  payable  in 
New  York,  for  a  loan  of  money  in  Massachusetts,  and  payable 
to  one  B.,  who  indorsed  it  to  the  plaintifiT  in  Iowa;  and  to 

43  Forbes  v.  Murray,  3  Benedict's  (U.  S.  Dist.  Court)  R.,  497  (1869).  See, 
also,  Guthrie  v.  CoUin,  3  Daly  (N.  Y.),  125,  (1869). 

44  Berrien  v.  Wright,  26  Barb.,  208;  Andrews  v.  Pond,  13  Pet.,  65;  Chap- 
man V.  Robertson,  6  Paige  Ch.,  627;  Story  on  the  Conf.  of  Laws.  §  296. 


NON-PAYMENT  OF  MONEY.  207 


Exchange. 


secure  the  note  the  defendant  and  his  wife  executed  a  deed  of 
trust  of  real  estate  in  Iowa,  to  a  trustee  residing  in  that  state, 
and  the  note  was  delivered  by  the  defendant  to  the  plaintiff's 
indorser  in  Massachusetts,  and  the  money  loaned  thereon 
received  there,  pursuant  to  an  agreement  entered  into  when 
the  loan  was  negotiated ;  it  was  held  in  an  action  to  foreclose 
the  trust  deed,  that  if  the  plaintiff  and  defendant  in  good  faith 
and  without  intent  to  evade  the  usury  laws  of  Massachusetts, 
stipulated  for  the  rate  of  interests  allowable  in  Iowa,  which 
was  greater  than  the  legal  rate  of  either  Massachusetts  or 
New  York,  the  stipulated  interest  was  recoverable  and  the 
contract  should  be  enforced  accordingly." 

§  225.  Exchange. — The  question  often  arises  whether  a 
debt,  payable  in  one  country  and  sued  upon  in  another,  entitles 
the  plaintiff  to  the  difference  in  exchange  between  the  two  coun- 
tires,  in  addition  to  the  ordinary  damages.  And  on  this  ques- 
tion there  seems  to  be  a  diversity  of  decisions.  In  New  York 
and  Massachusetts,  it  is  held  that  this  amount  cannot  be  recov- 
ered."' While  the  United  States,  and  otlier  courts,  have  held  that, 
in  addition  to  the  ordinary  damages,  the  plaintiff  might  recover 
the  exchange  between  the  two  countries."  And  in  an  action 
on  a  note  made  by  the  defendant  in  Canada,  and  payable  in 
Canadian  currency,  which  was  at  a  premium  over  United 
States  currency,  and  where  the  suit  was  brought  on  the  same 
in  Wisconsin,  it  was  held  by  the  Supreme  Court  of  that  state, 
that  the  premium  might  be  recovered,  and  that  it  should  be 

45  Arnold  v.  Potter,  22  la.,  195.  See,  also,  Butts  v.  Olds,  11  la.,  1 ;  Towns- 
end  V.  Reily,  46  N.  H.  300  (1867);  Am.  L.  Reg.,  Feb.,  1867,  p.  251;  Chap- 
man V.  Robertson,  6  Paige  Ch.,  627;  Peck  v.  Mayoi  14  Vt.,  33. 

46  Martin  V.  Franklin,  4  John.,  124;  Scofield  v.  Day,  20  John.,  102;  Adams 
V.  Cordis,  8  Pick.,  260.  See,  also,  Lodge  v.  Spooner,  8  Gray,  166;  Hussey  v. 
Farlow,  91  Mass.,  (9  Allen),  263;  Bush  v.  Baldrey,  93  Mass.,  (11  AUen),  367. 

47  Smith  V.  Shaw,  2  Wash.,  U.  S.,  C.  C,  167;  Grant  v.  Healey,  3  Sumner, 
523;  Lanussev.  Baker,  3  Wheat.,  101;  Woodhull  v.  Wagner,  1  Bald.  (U.  S.), 
296;  Story  on  Notes,  §  396,  et  seq.;  Delegal  v.  Nailor,  7  Bing.,  460;  Ekins 
V.  East  Ind.  Co.,  1  P.  William,  395;  Lee  v.  WiUcox,  5  Serg.  &  R.,  48;  Cash 
V.  Kennion,  11  Vesey,  314. 


208  THE  LAW  OF  DAMAGES. 

Protest. 

estimated  at  the  rate  current  at  the  date  of  tlie  judgment,  and 
which  sliould  be  for  the  amount  required  to  purchase  Cana- 
dian currency  to  the  amount  found  due  on  the  note;  and  that 
any  paj^ment  previously  made  on  the  note  in  the  currency  of 
the  United  States,  should  be  credited  at  the  rate  of  premium, 
current  at  the  time  of  the  payment,  between  the  two  countries."^ 
But  the  general  rule  in  reference  to  payments  made  as  we 
have  seen,  is  different;  and  where  currency  is  received  with- 
out objection  or  any  special  contract,  in  payment  of  a  note 
payable  in  a  particular  kind  of  money,  it  has  been  generally 
held,  that  the  payee  must  credit  the  nominal  amount  of  the 
money  received. 

The  doctrine  holding  the  maker  responsible  in  damages  for 
the  difference  in  exchange  in  such  cases,  seems  to  rest  on  the 
soundest  reasoning  and  is  supported  by  analogy  in  other  cases. 
To  make  the  plaintiff  whole,  he  should  receive  the  money 
promised  at  the  place  of  payment  and  in  the  specific  coin  or 
currency  agreed  to  be  paid,  or  at  least  its  equivalent  in  other 
money  at  the  place  where  the  suit  is  brought.  This  doctrine 
is  applied  to  breach  of  contracts  to  deliver  property.  The 
measure  of  damages  in  such  a  case,  being  the  value  at  the 
time  and  place  stipulated  for  delivery,  or  in  some  states  the 
highest  price  between  that  time,  and  the  time  of  trial,  when 
the  price  has  been  paid." 

§  226.  Protest. — In  case  of  the  protest  of  the  note  or  bill 
the  expenses  of  protest  are  also  legitimate  damages  and 
should  be  added  to  the  ordinary  damages  and  included  in 
the  judgment.'"  The  amount  of  damages  in  such  cases  is 
usually  regulated  by  statute. 

48  Hawes  v.  Woolcock,  26  Wis.,  629.     Story  on  Prom.  Notes,  §  397. 

49  See  rule  in  such  cases,  jjost,  §  246. 

•  50  Welden  v.  Buck,  4  John.,  144;  Bowen  v.  Stodard,  10  Met.,  375;  Cook  v. 
Clark,  4  E.  D.  Smith,  213;  Chitty  on  BiUs,  683;  Bayley  on  BHls,  Ch.  9,  p, 
388;  Meritt  v.  Benton,  10  Wend.,  117.  But  in  Maine  it  seems  in  the  absence 
of  statutoiy  provisions  on  the  subject  that  such  damages  are  not  allowed. 
Loud  V.  Merm,  47  Me..  351. 


NON-PAYMENT  OF  MONEY.  209 


Indorsee  against  Indorser  or  Surety— Fraud  in  Transfer— Genuineness,  etc. 


§  227.    Indorsee  against  Indorser  or  Surety  on  the 

j^Q^g  _;\fp.  Chitty,  in  liis  valuable  treatise  on  Bills,  remarks: 
"In  general,  between  the  original  parties  or  a  holder  who  has 
not  p-iven  fall  value,  the  defendant  is  at  liberty  to  show  tliat 
he  drew,  accei^ted,  indorsed,  or  made  the  bill  or  note,  for  the 
accommodation  of  the  plaintiffs  or  one  of  tliem,  or  of  a  person 
for  whom  he  is  a  trustee,  who  either  expressly  or  impliedly 
engaged  to  provide  for  the  bill;  or  the  defendant  may  show 
that  he  received  no  consideration,  or  none  that  was  in  point  of 
law  adequate,  and  thus  may  entirely  defeat  the  action  or 
reduce  the  claim."  " 

The  measure  of  damages  in  an  action  by  an  indorsee  against 
an  accommodation  indorser,  is  the  amount  paid  by  the  indor- 
see with  interest,  subject  however  to  the  limitation  of  the 
amount  due  on  the  note,  which  it  can  never  exceed  though  it 
may  fall  short.'" 

And  where  the  law  permits  the  assignment  of  a  non-nego- 
tiable promissory  note  or  bill  of  exchange  and  owing  to  the 
insolvency  of  the  maker,  or  other  sufficient  cause,  the  assignee 
has  failed  to  recover  the  amount  from  the  maker,  in  an  action 
against  the  assignor,  where  he  is  liable,  all  the  damages  would 
be  the  consideration  paid  by  the  assignee,  and  interest.'' 

§228.  Fraud  in  Transfer  —  Genuineness  of  Sig- 
natures Warranted.— So,  in  an  action  for  damages  for 
fraudulently  transferring  to  the  plaintiff  a  promissory  note,  as 
a  valid  subsisting  demand,  when  in  fact  it  had  been  previously 
paid  and  canceled;  the  measure  of  ^^m^ige^, prima  facie,  is 


5'  Chitty  on  Bills,  70. 

5=  Scliaeffer  v.  Hoges,  54  111.,  337. 

53  EUott  V.  Therelkeld,  16  B.  Mon.,  343;  Whistler  v.  Bragg,  31  Mo.,  124; 
Braman  v.  Hess,  13  John.,  52;  Cook  v.  Clark,  4  E.  D.  S.  (N.  Y.),  213, 
Hutchins  V.  McCann,  7  Porter  (Ala.),  94;  Noble  v.  Walker,  32  Ala.,  456; 
French  v.  GrincQe,  15  Me.,  163;  Davis  v.  Harrison,  2  J.  J.  Marsh  (Ky.),  189. 

14 


210  THE  LAW  OF  DAMAGES. 

Notes  Payable  in  Specific  Articles. 

the  face  of  the  note  and  interest.  The  ability  of  the  maker 
to  pay  the  note  will  be  presumed." 

And  in  an  action  by  the  holder  against  the  assignor  of  a 
note,  where  it  appeared  that  the  defendant  had  procured  a 
minor  to  indorse  it,  and  then  put  it  in  circulation,  it  was 
held,  that  the  holder  could  recover  the  amount  of  it,  of  the 
wrongdoer,  on  the  ground  of  an  implied  warranty  that  the 
parties  whose  names  appeared  on  the  note  were  able  to  make 
a  valid  contract.^* 

But  where  the  plaintiff  holds  an  accommodation  note  only 
as  pledgee,  he  can  only  recover  of  the  accommodation  maker 
the  amount  of  the  debt  secured  by  the  pledge.'" 

§  229.  Notes  Payable  in  Specific  Articles— Where 
notes  are  made  by  their  terms  payable  in  specific  articles  and 
there  is  a  failure  to  pay  in  the  articles  specified,  or  in  any 
manner,  should  they  be  treated  as  notes  or  as  ordinary  con- 
tracts for  the  delivery  of  property?  On  this  question  there  is 
a  diversity  of  decisions.  In  New  York  and  several  other 
states,  a  note  in  which  the  amount  is  payable  in  a  certain 
designated  article  of  merchandise  on  demand,  is  held  to  be  a 
note  for  the  payment  of  money  or  in  the  article  designated,' 
and  not  a  contract  to  deliver  the  article  or  its  market  or  cur- 
rent value.  And  if  the  defendant  has  neglected  to  pay,  in  the 
specified  article  payment  may  be  required  in  money  and  the 
measure  of  damages  is  the  amount  due  in  money  and  inter- 
est, and  not  the  value  of  the  article,  or  the  loss  of  profits 
arising  from  the  non-delivery  of  the  property. 

It  is  also  held,  in  such  cases,  that  the  option  is  with  the 
defendant  to  pay  the  amount  designated  in  the  article  specified, 
and  at  the  price,  if  any,  designated  in  the  instrument,  and  if 

54  Neflf  V.  Clute,  12  Barb.  (N.  Y.),  466.  See,  also,  Patterson  v.  Wester- 
velt,  17  Wend.,  543. 

55  LolxleU  V.  Baker,  3  Met.,  469;  ThraU  v.  Newall,  19  Vt.,  202. 

56  Blydenburgh  v.  Thayer,  1  Abb.  (N.  Y.),  156  (1807);  Atlas  Bk.  v.  Doyle, 
9  R.  I.,  76. 


NON-PAYMENT  OF  MONEY.  211 

Notes  Payable  in  Specific  Articles. 

none  is  designated,  then  at  the  current  price  at  the  time  and 
place  provided  for  payment.  But  where  there  is  a  faihire  to 
pay  in  this  way  at  the  time  and  place  designated,  and  thus  to 
make  the  election,  the  note  becomes  a  naked  agreement  to  pay 
the  money .°' 

And,  in  Illinois,  where  a  note  was  given  for  $300  payable 
in  cattle,  in  an  action  npon  the  note,  it  was  held  that  by  the 
non-payment  of  the  note  in  cattle  when  it  became  due,  it 
became  an  obligation  to  pay  in  cash;  and  that  in  default  of  a 
successful  defense  to  the  note,  the  clerk  might  assess  the 
damages  due  upon  the  same  as  upon  a  note  payable  in 
money.^^ 

So  in  the  same  state  where  a  party  undertakes  to  pay  a  cer- 
tain number  of  dollars  in  specific  articles,  such  as  grain,  cattle, 
or  other  commodities,  he  must  deliver  the  articles  on  the  day 
named  in  the  contract  or  he  becomes  absolutely  bound  to  pay 
the  sum  stated  in  money. '^ 

But  in  Wisconsin,  in  an  action  on  an  instrument  in  the  fol- 
lowing form :  "  Due  to  J.  A.  Noonan  $300  in  Watertown  R. 
K.  Stock,"  the  value  of  stock  of  the  nominal  amount  of  $300 
and  not  that  amount  of  money,  was  held  to  be  the  measure 
of  damages.""  And  in  Iowa,  in  an  action  on  a  due-bill 
payable  in  flour  on  a  specified  day,  it  was  held,  that  the  value 

57  Pinney  v.  Gleason,  5  Wend.,  393;  Chit,  on  Con.,  35;  Parsons  on  Con., 
163,  and  notes;  White  v.  Thompkins,  52  Pa.  St.,  363;  Moore  v.  Riff, 
Supreme  Court  Pa.,  March  29th,  1875,  not  yet  reported;  Trobridg'e  v.  Hol- 
comb,  4  Ohio  St.,  .38;  Brooks  v.  Hubbard,  3  Conn.,  58;  Weil  v.  Tyler,  38 
Mo.,  545;  Perry  v.  Smith,  22  Vt.,  301;  Haywood  v.  Haywood,  42  Me.,  229; 
Baker  v.  Mair,  12  Mass.,  121. 

58  Van  Hooser  v.  Logan,  3  Scam.  (111.),  .389. 

59  Smith  V.  Dunlap,  12  111.,  184.  But  where  a  note  was  given  in  that 
state,  payable  in  state  of  Illinois  indebtedness;  in  an  action  on  the  note,  it 
was  held  that  the  state  indebtedness  should  be  received  at  its  nominal 
value,  and  that  the  measure  of  damages  was  the  specie  value  of  the  state 
indebtedness  on  the  day  it  was  due,  with  interest  to  the  day  of  trial.    Id. 

*»  Noonan  v.  Ilsley,  17  Wis.,  314. 


212  THE  LAW  OF  DAMAGES. 

Bills  of  Exchange. 

of  the  flour  on  the  day  when  payment  should  have  been  made 
was  the  measure  of  damages."^ 

§  230  Bills  of  Exchange— Damages.— The  holder  of  a 
bill  of  exchange  is  entitled  to  full  indemnity  from  the  other 
parties  to  the  bill  on  its  dishonor.  The  damages  recoverable 
may  embrace  the  amount  for  which  the  bill  was  drawn,  inter- 
est from  the  time  of  its  maturity,  costs  of  protest,  exchange 
and  re-exchange.'^  But  the  liabilities  of  drawers,  indorsers, 
guarantors  and  acceptors,  as  between  themselves,  vary.  They 
are  governed  by  the  laws  of  the  respective  countries  where 
their  respective  contracts  are  made,  and  they  seldom  incur  an 
equal  responsibility. 

But  the  holder  is  entitled  to  recover  the  damages  indicated 
against  any  or  all  of  the  parties.  The  principal  sum,  of 
course,  is  ascertained  by  its  par  value  at  the  place  of  payment; 
interest  is  allowed  according  to  the  law  of  the  place  of  pay- 
ment; and  the  re-exchange  allowed  should  be  the  amount 
required  to  purchase  a  bill  in  the  country  where  the  bill  was 
payable  or  accepted,  drawn  upon  the  drawer  or  indorser  of  the 
original  bill  in  the  countrj^  where  he  resides,  which  will  give 
the  holder  of  the  original  bill  the  sum  he  should  have  received 
on  the  bill,  together  with  the  interest  and  necessary  expenses." 

«=  Davenport  v.  Wells,  1  la.,  598.    But  see,  Edwards  on  B.  &  N.,  723. 

*3  Edwards  on  Bills  and  Notes,  714,  et  seq. 

64  Story  on  Bills,  §  397,  et  seq. ;  3  Kent's  Com.,  116,  et  seq.  On  this  sub- 
ject Justice  Story,  in  an  opinion  delivered  by  him,  makes  the  following 
sound  statement:  "  I  take  the  general  doctrine  to  be  clear,  that  whenever  a 
debt  is  made  payable  in  one  country  and  is  afterwards  sued  for  in  another 
country,  the  creditor  is  entitled  to  receive  the  full  sum  necessary  to  replace 
the  money  in  the  country  where  it  ought  to  have  been  paid  with  interest  for 
the  delay;  for  then  and  then  only  is  he  fully  indemnified  for  the  violation 
of  the  contract.  In  every  such  case  the  plaintiff  is  therefore  entitled  to  have 
the  debt  due  to  him  first  ascertained  at  the  par  of  exchange  between  the  two 
countries,  and  then  to  have  the  rate  of  exchange  between  those  two  coun- 
tries added  to  or  subtracted  from  the  amount,  as  the  case  may  require,  in 
order  to  place  the  money  m  the  country  where  it  ought  to  be  paid.  It  seems 
to  me  that  this  doctrine  is  founded  on  the  true  principles  of  reciprocal 
justice."  Grant  v.  Healey,  3  Sumner,  523  (1839).  See,  also,  Story  on  Notes, 
§  898. 


NON-PAYMENT  OF  MONEY.  213 


Bills  of  Exchange. 


The  amount  of  damages  recoverable  on  the  dishonor  of  bills 
of  exchange,  is  now  generally  the  subject  of  statutory  regula- 
tion in  this  country.  We  therefore  append  a  note  containing 
a  summary  of  those  provisions  in  various  states." 


65  The  following  is  a  brief  summary  of  the  provisions  of  the  statutes  of  vari- 
ous states,  relating  to  damages  in  such  cases. 

Arkansas. — Every  Bill  of  Exchange  expressed  to  be  for  value  received, 
drawn  or  negotiated  within  the  State,  payable  after  date  to  order  or  bearer 
which  shall  be  duly  presented  for  acceptance  or  payment  and  protested  for 
non-acceptance  or  non-payment,  is  subject  to  the  following  per  centum  as 
damages,  on  the  amount  expressed  in  the  bill: 

1.  If  payable  within  the  state  at  the  rate  of  two  per  cent. 

2.  If  payable  in  Alabama,  Louisiana,  Mississippi,  Tennessee.  Kentucky, 
Ohio,  Indiana,  Illinois  or  Missouri,  or  any  point  on  the  Ohio  river  at  the 
rate  of  four  per  centum. 

3.  If  payable  at  any  place  in  the  United  States  not  before  expressed  at 
the  rate  of  five  per  centum. 

4.  If  payable  at  any  port  or  place  beyond  the  limits  of  the  United  States, 
at  the  rate  of  ten  per  centum. 

If  accepted  and  protested  for  non-payment  the  following  is  the  damages: 

1 .  If  drawn  by  any  person  within  the  state,  at  the  rate  of  two  per  centum. 

2.  If  drawn  by  any  person  without  the  state,  but  within  the  United 
States,  at  the  rate  of  six  per  centum. 

3.  If  drawn  by  any  person  without  the  United  States,  ten  per  centum. 
In  addition  to  which  expense  of  protest,  and  interest  at  the  rate  of  ten  per 

centum  per  annum  on  the  amount  specified  in  the  bill,  is  added  thereto. 
Gould's  Dig.  Ch.  25,  pp.  208,  210. 

Alabama. — Damages  on  protested  bills,  inland  or  foreign,  protested  for  non- 
payment are  five  per  cent  on  the  sum  drawn  for,  and  the  holder  may  recover 
costs  of  protest  and  interest.  The  same  rule  of  damages  applies  in  case  of 
non-acceptance.    Rev.  Code,  (1867),  §§  1845,  1846,  1849. 

Arizona. — Damages  on  protest  for  non-payment  of  bills  of  exchange,  if 
drawn  on  a  person  in  the  United  States  or  Territories  east  of  the  Rocky 
Mountains,  fifteen  per  centum  of  the  amount.  If  drawn  upon  any  person 
in  any  place  in  Europe  or  any  foreign  country,  twenty  per  centum, 

Such  damages  are  in  lieu  of  interest,  charges  of  protest  and  all  charges 
incurred  previous  to  and  at  the  time  of  giving  notice  of  non-payment.  Inter- 
est is  also  recoverable  on  the  amount  of  the  principal  and  of  the  damages, 
from  the  time  of  the  protest.     Compiled  Laws,  (1871),  Ch.  70. 

California. — Damages  in  full  compensation  for  interest  accrued  before 
notice  of  dishonor,  re-exchange,  expenses,  and  all  other  damages,  in  favor  of 


214  THE  LAW  OF  DAMAGES. 

Bills  of  Exchange. 

But  a  failure  of  a  defendant  to  accept  a  draft  for  the  accom- 
modation of  the  plaintiff,  does  not  entitle  the  plaintiff  to 
recover  the  amount  of  the  draft  as  damages,  but  only  for  the 

holders  for  value  only,  for  non-acceptance  or  non-payment  of  any  bill  drawn 
or  negotiated  in  the  State  are  as  follows : 

1.  If  drawn  upon  any  person  in  the  State,  two  per  centum  of  the  prin- 
cipal sum. 

2.  Drawn  upon  any  person  out  of  the  State,  but  west  of  the  Rocky 
Mountains,  five  per  centum. 

3.  If  drawn  upon  any  person  east  of  the  Rocky  Mountains,  ten  per  centum. 

4.  If  drawn  upon  any  person  in  a  foreign  country  fifteen  per  centum. 
Besides,  interest  is  allowed  upon  the  amount  of  the  bill,  and  the  foregoing 

damages,  from  the  time  of  the  dishonor.  Civil  Code,  §§  3234,  3235,  3236. 
See  Annotated  Civ.  Code,  (Raymond  and  Burch),  (1874),  p.  372. 

Colorado.— On  foreign  bills,  as  damages  on  non-acceptance  or  non-pay- 
ment, the  drawer  or  indorser  is  required  to  pay  the  bill  with  legal  interest 
from  the  time  it  ought  to  have  been  paid,  with  ten  per  centum,  and  the  costs 
of  protest. 

If  the  bill  is  drawn  upon  any  party  out  of  the  territory  but  within  the 
United  States  or  her  Territories,  the  damages  are  the  same  as  on  a  foreign 
bill.    Rev.  Stat.  (1868),  Ch.  10,  §§  1,  2. 

Connecticut. — The  damages  allowed  on  protest  of  a  bUl  of  exchange  with- 
out the  State,  on  a  bUl  drawn  or  negotiated  in  the  state,  include,  in  addition 
to  the  principal  sum  and  interest  on  the  same  and  on  the  damages  hereafter 
specified  from  the  time  at  which  notice  of  such  protest  shaU  have  been 
given,  and  payment  of  such  sum  demanded,  a  further  sum  as  follows :  If 
such  bill  shall  have  been  drawn  on  any  person  in  the  city  of  New  York,  two 
per  cent  on  the  principal  sum.  If  upon  any  person  in  the  states  of  New 
Hampshire,  Vermont,  Maine,  Massachusetts,  Rhode  Island,  New  York 
[except  the  city].  New  Jersey,  Pennsylvania,  Delaware,  Maryland,  or  Vir- 
ginia, or  in  the  District  of  Columbia,  three  per  cent.  If  upon  any  person 
in  the  states  of  North  Carolina,  Oliio,  Illinois,  Indiana,  Michigan,  Ken- 
tucky, or  Georgia,  five  per  cent.  If  upon  any  person  in  any  other  state. 
Territory,  or  District  of  the  United  States,  eight  per  cent.  Such  damages 
stand  in  the  place  of  interest  and  aU  other  charges  to  the  time  when  notice 
of  the  protest  is  given  and  demand  of  payment  made,  and  such  damages 
shall  be  determined  without  reference  to  the  rate  of  exchange.  Rev.  1875, 
p.  344.  Damages  on  protest  of  a  foreign  bill  is  governed  by  the  rate  allowed 
in  the  place  where  it  was  drawn.     Shipmau  v.  Miller,  2  Root,  405. 

Delaware. — Damages  on  bills  of  exchange,  drawn  on  any  person  beyond 
the  seas,  and  returned  unpaid  with  legal  protest,  as  to  the  drawer,  indorser, 
and  aU  concerned,  is  at  the  rate  of  twenty  per  centum  on  the  contents  of  the 
bills,  in  addition  thereto.    Rev.  Code,  p.  183,  §  1. 

Georgia. — The  holder  of  any  bill  protested  for  non-payment  or  non-ac- 
ceptance, payable  out  of  the  State  but  within  the  United  States,  is  entitled 


JS'ON-PAYMENT  OF  MONEY.  215 

Bills  of  Exchange. 

loss  sustained  from  the  defendant's  promise  to  accept,  and  liis 
failure  so  to  do, 

§  231.    The  acceptor  is  not  generally  liable  for  the  extra 

to  recover  five  per  cent  on  the  principal  as  damages,  in  addition  to  the 
principal,  interest,  and  protest  fees.  If  the  biU  is  payable  at  any  place 
without  the  United  States  the  holder  may  recover  as  above  ten  per  cent. 

Illinois. — Damages  on  protested  bills,  payable  without  the  United  States, 
ten  per  cent  in  addition  to  principal,  interest,  and  costs  of  protest.  Where 
payable  at  any  place  within  the  United  States,  but  out  of  the  state,  five  per 
cent  in  addition  to  principal,  interest,  and  costs  of  protest.  Rev.  Stat. 
(1874),  718. 

Indiana. — Damages  payable  on  protest  in  the  United  States,  but  out  of 
the  State  five  per  cent  without  the  United  States  ten  per  cent,  on  the  prin- 
cipal of  the  bill,  together  with  interest  from  the  date  of  the  protest,  but  no 
other  interest.  No  account  to  be  taken  of  rate  of  exchange  of  blUs  payable 
within  the  United  States.     Gavin  &  Herd's  Stat.,  1862,  pp,  658,  659. 

Iowa. — On  bills  drawn  or  indorsed  in  the  state,  upon  a  person  at  any 
place  without  the  United  States,  or  in  California,  Oregon,  or  Nevada,  or  any 
of  the  Territories,  five  per  cent  on  the  principal  sum  with  interest  on  the 
same  from  the  time  of  protest.  If  drawn  upon  any  person  in  any  other 
place  in  the  United  States,  except  in  this  State,  three  per  cent  with  interest. 
Code  1873,  §  2096. 

Keniucky. — Bills  drawn  on  any  person  out  of  the  United  States,  and  pro- 
tested for  non-payment  or  non-acceptance  bear  ten  per  cent  per  annum  inter- 
est from  the  day  of  protest,  for  not  longer  than  eighteen  months.  Such 
interest  to  be  recovered  to  the  time  of  judgment,  which  draws  sis  per  cent 
thereafter.    Damages  on  all  other  bills  disallowed.    Gen.  Stat.,  1874,  250. 

Louisiana. — Damages  on  protest  of  biUs,  for  non-payment  or  non-accept- 
ance, where  drawn  or  negotiated  in  the  state,  drawn  on  and  payable  in 
foreign  countries,  ten  per  cent  of  the  principal.  If  payable  in  any  other 
State  in  the  United  States,  five  per  cent.  Such  damages  are  in  lieu  of  inter- 
est, charges  of  protest,  and  all  other  charges  incurred  up  to  the  time  of  pro- 
test. But  the  holder  is  entitled  to  interest  upon  the  aggregate  sum  from  the 
time  notice  of  protest  is  given. 

Maine. — Damages  on  protested  bills  of  one  hundred  dollars  or  more,  if  pay- 
able at  a  place  seventy-five  miles  distant,  one  per  cent;  if  payable  in  the  state 
of  New  York  or  any  state  northerly  of  it  and  not  in  Maine,  three  per  cent; 
if  in  any  Atlantic  state  or  territory  southerly  of  New  York,  and  northerly 
of  Florida,  six  per  cent;  in  any  other  state  or  territory,  nine  per  cent. 

Massachusetts. — The  holders  of  bills  drawn  or  indorsed  in  the  State  and 
payable  without  the  States,  (excepting  places  in  Africa  beyond  the  Cape  of 
Good  Hope,  or  any  place  in  Asia  or  the  islands  thereof,)  duly  protested  for 
non-acceptance  or  non-payment,  are  entitled  to  the  current  rate  of  exchange 
at  the  time  of  the  demand,  and  five  per  cent  upon  the  contents  thereof,  and 


216  THE  LAW  OF  DAMAGES. 


Bills  of  Exchange. 


charges  on  re-excLange;  he  is  only  liable  for  the  sum  specified 
in  the  bill  with  interest,  according  to  the  rate  at  the  place  of 
payment.     The  drawer  is  liable  for  re-exchange,  as  he  under- 


interest  on  the  contents  from  the  date  of  the  protest.  The  amount  of  con- 
tents, damages  and  interest,  is  in  full  of  all  damages,  charges  and  expenses 
in  the  above  cases.  If  the  bill  is  payable  at  any  place  in  Africa  beyond  the 
Cape  of  Good  Hope,  or  any  place  in  Africa  or  the  islands  thereof,  twenty  per 
cent  is  allowed  in  full  of  all  damages,  interest  and  charges  as  aforesaid.  If 
the  bill  is  payable  within  the  State  of  Maine,  New  Hampshire,  Vermont, 
Rhode  Island,  Connecticut,  or  New  York,  two  per  cent;  New  Jersey,  Penn- 
sylvania, Marj'land,  or  Delaware,  three  per  cent;  Virginia,  North  Carolina, 
South  Carolina,  or  Georgia,  or  in  the  District  of  Columbia,  four  per  cent; 
if  in  any  other  of  the  United  States,  or  the  Territories  thereof,  five  per  cent. 
If  the  bill  is  for  a  sum  of  not  less  than  one  hundred  dollars,  and  payable 
within  the  state  at  a  place  not  less  than  seventy- five  miles  from  the  place 
where  drawn  or  indorsed,  one  per  cent  in  addition  to  the  contents  thereof 
and  interest  on  the  contents.     Gen.  Stat.  (1860),  p.  294. 

Michigan. — Damages  on  bills  duly  protested,  in  addition  to  the  contents 
of  the  bill  and  interest  and  costs;  on  bills  payable  at  any  place  without  the 
state,  but  -\vithin  the  Territory  of  Wisconsin,  or  either  of  the  states  of  lUi- 
nois,  Indiana,  Pennsylvania,  Ohio,  or  New  York,  three  per  cent  on  the  con- 
tents of  the  bill;  if  payable  within  either  of  the  states  of  Missouri, 
Kentucky,  Maine,  New  Hampshire,  Vermont,  Massachusetts,  Rhode  Island, 
Connecticut,  New  Jersey,  Delaware,  Marjiand,  Virginia,  or  the  District  of 
Columbia,  five  per  cent;  and  if  payable  elsewhere  within  any  other  of  the 
United  States,  or  the  Territories  thereof,  ten  per  cent.  If  the  bill  is  payable 
without  the  limits  of  the  United  States,  the  holder  may  recover  the  same, 
with  the  current  rate  of  exchange  at  the  time  of  the  demand,  and  damages 
at  the  rate  of  five  per  cent  upon  the  contents  thereof,  together  with  interest 
on  said  contents  from  the  date  of  protest;  said  sum  to  be  in  fuU  of  damages, 
charges  and  expenses.     Comp.  Laws,  1871,  p.  516. 

Minnesota. — Damages  on  protested  bills  payable  without  the  limits  of  the 
United  States,  are  the  bill  with  the  current  rate  of  exchange  at  the  time  of 
the  demand,  and  ten  per  cent  on  the  contents,  with  interest  on  the  contents, 
from  the  time  of  protest,  to  be  in  full  of  all  damages,  charges  and  expenses. 
If  the  bill  is  drawn  on  any  person  m  the  United  States  but  out  of  the  state, 
five  per  cent  damages  together  with  costs  and  charges  of  protest  besides  the 
amount  of  the  bill  and  legal  interest.     Stat,  at  Large,  (1873),  p.  714. 

Mississippi. — Damages  on  bills  drawn  on  any  person  out  of  the  state  but 
within  the  United  States,  five  per  Cent  on  the  amount,  besides  interest 
on  the  same;  out  of  the  United  States,  ten  per  centum,  besides  interest,  and 
the  holder  is  also  entitled  to  all  costs  and  charges  of  protest.  No  damages, 
on  domestic  bills.    Rev.  Code,  p.  484. 


NON-PAYMENT  OF  MONEY.  217 

Bills  of  Exchange. 

takes  to  indemnify  the  holder,  if  the  bill  is  not  paid ;  and  the 
holder  should  be  indemnified  for  the  purchase  of  a  new  bill  in 
the  country  where  the  original  bill  was  payable,  on  the  place 

Netv  York. — Damages  on  protest  of  bills  of  exchange  drawn  or  negotiated 
within  the  State,  ai-e  as  follows : 

1.  If  the  biU  is  drawn  upon  any  person  at  any  place  in  the  states  of 
Maine,  New  Hampshire,  Yermont,  Massachusetts,  Rhode  Island,  Connecticut, 
New  Jersey,  Pennsylvania,  Ohio,  Delaware,  Maryland  or  Virginia,  or  in  the 
District  of  Colimibia,  three  per  cent  upon  the  amount. 

2.  If  it  is  drawn  upon  any  person  at  any  place  in  either  of  the  states  of 
Noi-th  Carolina,  South  Carolina,  Georgia,  Kentucky  or  Tennessee,  five  per 
cent. 

3.  If  drawn  upon  any  person  in  any  other  state  or  territory  of  the  United 
States,  or  in  any  other  place  on  or  adjacent  to  this  continent  and  north  of  the 
equator,  or  in  any  place  in  the  West  Indies  or  elsewhere  in  the  Western 
Atlantic  Ocean,  ten  per  cent. 

4.  If  drawn  upon  any  person  in  Europe,  ten  per  centum.  Such  damages 
to  be  in  lieu  of  interest,  charges  of  protest  and  all  other  charges  incurred 
previous  to  and  at  the  time  of  giving  notice  of  non-pa>Tnent,  but  the  holder 
may  recover  in  addition  to  such  damages,  interest  upon  the  aggregate  amount 
of  the  principal  sum,  and  the  damages  aforesaid,  from  the  time  notice  of 
protest  shall  have  been  given,  and  payment  demanded. 

5.  If  the  contents  of  the  bill  are  expressed  in  the  money  of  the  United 
States,  the  amount  due  thereon  and  the  aforesaid  damages  shall  be  deter- 
mined without  reference  to  the  rate  of  exchange. 

6.  If  it  is  expressed  as  payable  in  the  money  or  currency  of  a  foreign 
country,  then  the  amount  due,  exclusive  of  the  damages  aforesaid,  shall  be 
ascertained  by  the  rate  of  exchange,  or  the  value  of  such  foreign  currency  at 
the  time  of  the  demand  of  payment. 

7.  Damages  on  non-acceptance  are  the  same  as  above  stated  in  reference 
to  non-paj-ment,  and  are  in  lieu  of  interest,  charges  of  protest,  and  all  other 
charges  pre\dous  to  and  at  the  time  of  giving  notice  of  non-acceptance.  But 
the  holder  shall  be  entitled  to  recover  interest  upon  the  aggegate  amount  of 
the  principal  and  damages  thereon,  from  the  time  of  protest. 

8.  The  damages  above  specified  are  only  recoverable  by  the  holder  of  a 
biU,  who  shall  have  purchased  the  same  or  some  interest  therein  for  a  valu- 
able consideration.     Statutes  at  Large,  (Edmonds  1863),  pp.  723,  724. 

Pennsylvania. — Damages  on  bills  drawn  or  indorsed  in  the  state,  upon 
any  party  in  any  other  state  or  territory  of  the  United  States,  excepting  the 
state  of  Louisiana,  besides  the  principal  sum,  damages  and  charges  of  pro- 
test, and  interest  on  the  principal  sum,  five  per  cent;  if  upon  any  person  in 
the  state  of  Louisiana,  or  any  other  place  in  North  America,  or  the  islands 
thereof,  except  on  the  northwest  coast  of  America  and  Mexico,  or  the  West 
India  or  Bahama  Islands,  ten  per  cent;  on  any  person  in  the  Island  of 


218  THE  LAW  OF  DAMAGES. 

Bills  of  Exchange. 

where  it  was  drawn,  and  on  which  he  can  realize  the  amount 
which   should  have  been  paid  on  the  dishonored  bill.     The 


Madeira,  the  Canaries,  Azores,  the  Cape  de  Verde,  the  Spanish  Main,  or 
Mexico,  fifteen  per  cent;  if  upon  any  person  in  Europe,  or  the  islands 
thereof,  twenty  per  cent;  if  upon  any  party  in  any  other  part  of  the  world, 
twenty-five  per  cent.  These  damages  are  in  lieu  of  interest  and  other 
charges,  except  charges  of  protest,  to  the  time  of  demand  and  notice;  the 
amount  to  be  determined  by  the  rate  of  exchange  or  the  value  of  the  money 
or  currency  mentioned  in  such  bUl  at  the  time  of  protest  and  demand  of 
payment.  Dunlop's  Laws  of  Penn.  (1849),  pp.  357,  358,  Act,  March,  1821;  1 
Brightley's  Purdons  Dig.,  p.  158,  §  1. 

Rhode  /sZaw(Z.— Damages  on  protested  bills  for  non-acceptance  or  non- 
payment, returned  from  any  place  without  the  United  States,  ten  per  cent., 
besides  charges  of  protest.  The  bill  also  draws  six  per  cent  per  annum, 
from  the  time  of  protest.  On  inland  bUls,  drawn  on  parties  out  of  the  state, 
five  per  cent  damages,  and  charges  of  protest,  and  interest  at  six  per  cent 
from  the  time  of  protest.    Gen.  Stat.,  1872,  pp.  270,  271. 

South  Carolina. — Damages  on  protested  bills  drawn  upon  persons  resident 
in  the  United  States,  but  out  of  the  state,  ten  per  cent;  on  all  bills  in  like 
manner  drawn  on  persons  resident  in  any  other  portion  of  North  America,  or 
within  any  portion  of  the  West  India  Islands,  twelve  per  cent;  on  all  biUls 
drawn  on  persons  resident  in  any  other  portion  of  the  world,  fifteen  per 
cent,  besides  the  charges  incidental  thereto,  and  lawful  interest  until  the 
sum  is  paid.    Rev.  Stat.,  1873,  p.  321. 

Tennessee. — Damages  on  protested  bills  drawn  on  persons  out  of  the  state, 
but  within  the  United  States,  three  per  cent.  If  drawn  on  any  person  in  any 
other  state  or  place  in  North  America  bordering  upon  the  Gulf  of  Mexico, 
or  in  any  of  the  West  India  Islands,  fifteen  per  cent.  If  diuwn  on  any  per- 
son in  any  other  part  of  the  world,  twenty  per  cent.  These  damages  are  in 
lieu  of  interest,  and  aU  other  charges  except  charges  of  protest,  to  the  time 
when  notice  of  the  protest  and  demand  of  payment  shall  have  been  given; 
but  interest  is  to  be  computed  from  that  time  on  the  principal,  together  with 
the  damages  and  charges  of  protest.  Thompson  &  Steger's  Comp.  S.  L., 
1871,  §§  1963,  1964. 

Teicas.— Damages  on  protested  bUls  drawn  on  persons  Hving  beyond  the 
limits  of  the  State,  are  ten  per  cent  upon  the  amount  of  the  biU,  together 
with  interest  and  costs  of  suit.  This  does  not  embrace  drafts  drawn  by 
persons  other  than  merchants  upon  their  agents  or  factors.  Paschal's  Annot. 
Dig.,  Art.  236,  p.  151  (1870). 

Fermon^.— There  are  no  statutory  provisions  in  Vermont  in  reference  to 
damages  on  protests  of  bills  of  exchange.  In  aU  such  cases  the  rule  of  dam- 
ages is  such  as  may  be  established  by  the  law  merchant.  Edwards  on  BiUs, 
etc.,  728,  et  seq. 

Virginia. — Damages  on  protested  biUs,  drawn  or  indorsed  within  the  state 


no:n'-payment  of  money.  219 


Bills  of  Exchange. 


amount  thus  required  to  be  paid  for  a  new  bill,  is  called 
re-exchange." 

Nor  can  the  indorser  of  a  note,  who  is  sued  on  his  indorse- 
ment and  compelled  to  pay  costs,  recover  those  costs  against 

and  payable  without  the  state  but  within  the  United  States,  three  per 
centum;  if  payable  without  the  United  States,  ten  per  centum.  Code,  1873, 
p.  987. 

West  Virginia.— Biimages  on  protest  of  bills  of  exchange  if  payable  out 
of  the  state  but  in  the  United  States,  three  per  centum;  and  ten  per  centum, 
if  payable  out  of  the  United  States.    Code  1868,  p.  537. 

Wisconsin. — Damages  on  protested  bills,  drawn  or  indorsed  in  the  state, 
but  payable  without  the  state,  the  current  rate  of  exchange  and  five  per 
cent  on  the  contents,  and  interest  on  the  same  from  the  date  of  protest,  in 
full  of  all  damages,  charges  and  expenses.  If  payable  out  of  the  state  but 
in  some  state  or  territory  adjoining  the  state,  but  in  the  United  States,  five 
per  cent  together  with  charges  of  protest.  If  payable  in  the  United  States 
or  territories  but  not  adjoining  the  state  ten  per  cent,  besides  costs  and 
charges  of  protest.    Taylor's  Rev.  Stat.,  1871,  p.  835. 

Missouri. — When  any  bill  of  exchange  is  expressed  to  be  for  value 
received,  drawn  or  negotiated  witlain  the  state,  is  duly  presented  for  accept- 
ance or  payment  and  protested  for  non-acceptance  or  non-payment,  the 
drawer  and  indorsers  having  due  notice  of  the  dishonor,  are  required  to  pay 
damages  as  follows : 

1.  If  drawn  on  any  person  at  any  place  within  the  state,  four  per  cent 
on  the  principal  sum. 

2.  If  drawn  on  any  person  out  of  the  state  but  within  the  United  States 
or  the  territories,  ten  per  cent. 

3.  If  drawn  on  any  person  at  any  place  without  the  United  States  or  the 
temtories  thereof,  twenty  per  cent. 

If  accepted  and  not  paid,  the  damages  allowed  are  four  per  cent  if  drawn 
by  any  person  within  the  state;  and  if  drawn  by  any  person  without  the 
states  or  territories,  ten  per  cent.  If  it  is  expressed  to  be  paid  in  the  money 
of  the  United  States  the  amomit  due  and  damages  are  to  be  determined 
without  reference  to  the  rate  of  exchange  existing  between  tliis  state  and 
the  place  on  which  it  is  drawn.  If  in  the  money  or  currency  of  any  foreign 
country,  then  the  amout  due,  exclusive  of  damages  is  to  be  ascertained 
by  the  rate  of  exchange  or  of  the  value  of  such  foreign  currency  at  the  time 
of  payment.    Wagner's  Mo.  Stat.,  pp.  215,  216. 

^  3  Kent's  Com.,  115,  et  seq.,  and  notes,  12  ed.  The  acceptor  is  not,  upon 
non-payment  of  a  bill,  ordinarily  liable  to  the  holder  for  anything  more  than 
the  principal  sum,  and  expenses  of  protest  and  interest  from  the  time  of  the 
maturity  of  the  bill.  He  is  not  liable  for  re-exchange.  Story  on  Bills, 
§  398. 


220  THE  LAW  OF  DAMAGES. 

Fixed  sum  as  Damages  on  Protest. 

the  maker,  as  he  should  have  paid  the  note  without  suit.  He 
can  only  recover  as  damages,  the  note  and  interest  and  expenses 
of  protest.'^ 

The  same  rule  applies  to  an  acceptor  of  a  hill,  with  ftinds^ 
who  has  failed  to  pay  the  acceptance.  If  suit  is  brought 
against  the  drawer  and  costs  paid  by  him,  the  acceptor  is  not 
liable  therefor."  E"or  is  the  indorser  of  a  bill  liable  to  the 
acceptor  for  the  costs  of  a  suit  by  the  holder  against  him." 
But  it  has  been  held  that  an  accommodation  acceptor  can 
recover  costs  of  the  drawer,"  and  that  an  accommodation 
indorser  may  recover  such  costs  against  the  maker." 

§  232.  Fixed  sum  as  Damages  on  Protest.— Many 
arguments  have  been  adduced  for  and  against  fixing  any 
arbitrary  sum  or  per  centum  as  damages,  in  case  of  the  non- 
acceptance  or  non-payment  of  a  bill.  On  the  one  side  it  is 
claimed  that  the  frequent  sudden  fluctuations  of  exchange, 
render  the  proof  of  actual  damages  in  that  respect  difficult  to 
determine;  and  that  the  interests  of  the  maker  as  well  as  the 
holder  require  the  amount  of  damages  to  be  fixed  in  such 
cases;  and  that  the  injustice  sometimes  done  to  parties  by  an 
arbitrary  rule,  is  more  than  balanced  by  advantages  secured 
to  them  thereby. 

On  the  other  side  it  is  said,  that  the  only  just  rule  of  dama- 
ges in  such  cases  is  that  of  actual  re-exchange — that  this  is 
"  the  only  one  which  can  perfectly  and  under  all  circumstan- 
ces and  fluctuations  of  exchange,  secure  a  fair  compensation 
for  the  loss  sustained  by  the  holder  of  a  dishonored  bill — that 
it  avoids  the  hazard  of  one  party  being  sometimes  but  par- 


's Simpson  v.  Griffin,  9  John.,  131;  Steele  v.  Sawyer,  2  McCord,  459. 

7°  Barnwell  v.  Mitchell,  3  Conn.,  101. 

71  Bangor  Bank  v.  Hook,  5  Greenlf.  (Me.),  174. 

7=*  James  v.  Brooke,  4  Taunt.,  464,  Mansfield,  C.  J. 

73  Hubbly  V.  Brown,  16  John.,  70;  Baker  v.  Martin,  3  Barb.  (N.  Y.),  634. 


:n'o:n'-payment  of  mo:n"ey.  221 


Lex  Loci  Contractus  Generally  Governs. 


tially  paid,  or  the  other  opj^ressed  with  the  payment  of 
unequal  and  ruinous  damages.'"* 

§  233.    The  Lex  Loci  Contractus ,  generally  Governs . 

— The  general  rule  is,  that  the  rights  and  liabilities  of  the 
parties  to  a  negotiable  instrument,  are  governed  by  the  law  of 
the  place  where  the  contract  is  made. 

Mr.  Justice  Story,  in  his  valuable  work  on  the  Conflict  of 
Laws,  illustrates  the  rule  thus:  '•  Suppose  a  negotiable  bill  of 
exchange  is  drawn  in  Massachusetts  on  England,  and  is 
indorsed  in  Xew  York,  and  again  by  the  first  indorsee  in 
Pennsylvania,  and  by  a  second  in  Maryland,  and  the  bill  is 
dishonored;  what  damages  will  the  holder  be  entitled  to? 

The  law  of  damages  in  these  states  is  different.  In  Massa- 
chusetts it  is  ten  per  cent;  in  New  York  and  Pennsylvania 
twenty  per  cent,  and  in  Maryland  fifteen  per  cent.  What 
rule  then  is  to  govern?  The  answer  is,  in  each  case, 
the  lex  loci  contractus.  The  drawer  is  liable  on  the  bill 
according  to  the  law  of  the  place  where  the  bill  was  drawn; 
and  the  successive  indorsers  are  liable  on  the  bill  according 
to  the  law  of  the  place  of  their  indorsements,  every  indorse- 
ment being  treated  as  a  new  and  substantial  contract. 

The  consequence  is,  that  the  indorser  may  render  himself 
liable  upon  a  dishonored  bill,  for  much  higher  damages  than 
he  can  recover  from  the  drawer.  But  this  results  from  his 
own  voluntary  contract,  and  not  from  any  collision  of  rights 
arising  from  the  nature  of  the  original  contract."  " 

Li  a  recent  case,  in  an  action  upon  a  draft  for  a  certain  num- 
ber of  pounds  sterling,  drawn  in  London,  and  accepted  by  the 

74  Mr  Verplanck's  Report  to  the  House  of  Representatives  of  the  United 
States,  March,  1826,  in  favor  of  a  uniform  rule.  3  Kent's  Com.,  159,  7  Ed.; 
Edwards  on  B.  &  N.,  749,  750. 

75  Storj'  on  the  Conf.  of  L.,  §  314;  3  Kent's  Com.,  115,  et  seq.,  and  notes; 
Story  on  Prom.  Notes,  §§  172,  173;  Shankland  v.  Cooper,  8  Blackf.,  4;  Huse 
V.  Hamblm,  29  Iowa,  501;  Tliorp  v.  Craig,  10  Id.,  461;  Bank  v.  Green,  33 
Id.,  140.    See,  also,  1  Par.  on  Con.,  288. 


222  THE  LAW  OF  DAMAGES. 


Scaling  Laws— North  Carolina— Scale  of  Depreciation. 


defendant  in  New  York,  it  was  held,  that  as  the  laws  of  the 
United  States  do  not  determine  the  value  of  a  pound  sterling 
for  commercial  purposes,  resort  must  be  had  to  the  custom  of 
merchants,  and  that  the  plaintiff  was  entitled  to  the  price  of 
exchange  between  New  York  and  London,  at  the  real  and  not 
the  nominal  par." 

It  is  not  within  the  proper  scope  of  this  treatise  to  consider 
fully  the  general  liability  of  parties  to  bills  and  notes,  liefer- 
ence  on  these  questions  may  be  had  to  those  treatises  espec- 
ially devoted  to  this  subject. 

SCALING  LAWS. 
In  various  states  that  formed  a  portion  of  the  Confederate 
States  during  the  late  war,  ordinances  and  statutes  have  been 
adopted  and  enacted  for  the  adjustment  and  liquidation  of 
contracts  made  during  the  war.  These  enactments  have  been 
adopted  to  meet  an  emergency  caused  by  the  war,  and  on  the 
theory  that  such  contracts  were  generally  made  and  entered 
into  with  reference  to  the  currency  then  in  use  in  those  states, 
and  were  based  upon  that  currency  as  the  standard  of  values, 
which  during  the  continuance  of  the  war  was  more  or  less 
depreciated. 

§  234.     Nortli    Carolina— Scale   of   Depreciation.— 

The  statutes  of  North  Carolina  provide  as  follows: 

"  Whereas,  By  an  ordinance  of  the  Convention,  entitled  '  An 
ordinance  declaring  what  laws  and  ordinances  are  in  force,  and  for 
other  purposes,'  ratified  on  the  18th  day  of  October,  in  the  year 
of  our  Lord,  one  thousand  eight  hundred  and  sixty-five,  it  is 
made  the  duty  of  the  General  Assembly  to  provide  a  scale  of 
depreciation  of  the  Confederate  currency,  from  the  time  of  its 
first  issue  to  the  end  of  the  war,  and  it  is  furthermore  therein 
declared  that  '  all  executory  contracts  solvable  in  money, 
whether  under  seal  or  not,  made  after  the  depreciation  of  said 

7«  Guiteman  v.  Davis,  3  Daly  (N.  Y.),  120;  45  Barb.,  756. 


KON-PATMENT  OF  MONEY.  223 


North  Carolina— Scale  of  Depreciation 


currency  before  the  first  day  of  May,  one  thousand  eight  liun- 
dred  and  sixty-five,  and  yet  unfulfilled,  (except  official  Ijonds 
and  penal  bonds  payable  to  the  state,)  shall  be  deemed  to  have 
been  made  with  the  understanding  that  they  were  solvable  in 
money  of  the  value  of  said  currency,'  subject,  nevertheless,  to 
evidence  of  a  difierent  intent  of  the  parties  to  the  contract; 
therefore, 

"  5.  Be  it  enacted  hy  the  General  Assembly  of  the  State 
of  North  Carolina,  And  it  is  hereby  enacted  by  the  authority 
of  the  same,  That  the  following  scale  of  depreciation  be  and 
the  same  is  hereby  adopted  and  established  as  the  measure  of 
value  of  one  gold  dollar  in  Confederate  currency  for  each 
month,  and  the  fractional  parts  of  the  month  of  December 
one  thousand  eight  hundred  and  sixty -four,  from  the  first  day 
of  November,  one  thousand  eight  hundred  and  sixty-one,  to  the 
first  day  of  May,  one  thousand  eight  hundred  and  sixty-five, 
to-wit: 

"  Scale  of  depreciation  of  Confederate  currency,  the  gold 

dollar  being  the  unit  and  measure  of  value,  from  JSTovember 

first,  one  thousand  eight  hundred  and  sixty-one,  to  May  first, 

one  thousand  eight  hundred  and  sixty-five: 

■  MONTHS.                        1861.    1862.     1863.  1864.  1865. 

January $1.20    $3.00  $21.00  $50.00 

February 1..30        3.00  21.00  50.00 

March 1.50        4.00  23.00  50.00 

AprH 1.50        5.00  20.00  60.00 

May 1.50        5.50  19.00  100.00 

June 1.50        6.50  18.00    

July 1.50        9.00  20.00    

August 2.00      14.00  23.00    

September 2.00      14.00  25.00    

October $1.10      2.50      14.00  26.00    

November 1.15      2.50      15.00  30.00    

December 20.00  

Dec.  1st  to  10th,  inclusive 35.00    

Dec.  11th  to  20th,  inclusive 42.00    

Dec.  21st  to  31st,  inclusive 49.00    

"  6.  The  scale  of  depreciation  of  Confederate  currency  herein 
established,  shall  be  construed  to  apply  to  debts  herein  men- 
tioned at  the  date  of  contracting  the  same,  and  not  at  the  time 
said  debts  became  due. 


224  THE  LAW  OF  DAMAGES. 

Where  Applicable. 


"7.  In  all  civil  actions  which  have  arisen  or  may  arise  in 
courts  of  justice,  for  debts  contracted  during  the  late  war,  in 
which  the  nature  of  the  obligation  is  not  set  forth,  nor  the 
value  of  the  property  for  which  such  debts  were  created  is 
stated,  it  shall  be  admissible  for  either  party  to  show  on  tlie 
trial  by  affidavit  or  otherwise,  what  was  the  consideration  of 
the  contract,  and  the  jury  in  making  up  their  verdict  shall 
take  the  same  into  consideration  and  determine  the  value  of 
said  contract  in  present  currency,  in  the  particular  locality  in 
which  it  is  to  be  performed  and  render  their  verdict  accord- 
ingly.-^ 

§  235.  Where  Applicable —The  provisions  of  the  ordin- 
ance and  statute  were  held  not  applicable  to  a  contract  made 
in  1864,  bartering  hats  for  cotton.  The  purchaser  of  hats, 
agreed  to  give  for  each  hat,  thirty  pounds  of  lint  cotton,  and 
in  an  action  for  damages  for  the  non-delivery  of  the  cotton, 
the  court  held,  that  the  true  measure  of  damages  was  the  value 
of  the  cotton  in  gold  at  the  time  and  place  of  the  contract. 
The  court  remarked:  "  As  United  States  Treasury  Notes  were 
not  used  as  a  medium  of  exchange  within  the  limits  of  the 
insurrectionary  states  during  the  war,  gold  must  be  adopted 
as  the  standard  of  value.  Where  the  gold  value  of  the  contract 
is  ascertained  by  evidence,  the  jury  in  adding  the  depreciation 
of  treasury  notes,  should  be  governed  by  the  market  value  of 
such  currency  at  the  time  of  the  verdict,  and  judgment  should 
be  rendered  for  the  amount."  " 

Where  a  bond  was  given  for  one  thousand  dollars,  dated 
November  18th,  1862,  and  payable  one  day  after  date,  the 
consideration  thereof  being  a  tract  of  land;  in  an  action  on 
the  bond,  it  was  held,  that  it  was  competent  for  the  plaintiff 
to  rebut  the  presumption  as  to  the  currency  in  which  it  was 


5*  Battles  Rev.,  1873,  pp.  348,  349. 

53  Garrett  v.  Smith,  64  N.  C,  93.     See,  also,  Mitchell  v.  Henderson,  63 
N.  C,  643. 


]S'ON-PAYMENT  OF  MONEY.  225 

Where  Applicable. 

solvable  under  the  ordinance,  by  proof  that  it  was  expressly 
agreed  by  the  parties  at  the  time,  that  it  was  to  be  paid  in 
good  money  after  the  war."  And  a  bond  given  January  2d, 
1865,  for  the  hire  of  a  slave  for  1865,  was  held  to  entitle  the 
holder  to  the  value  of  the  slave  for  that  year  in  lawful  money, 
and  not  subject  to  be  scaled  according  to  tlie  legislative  table 
of  the  values  of  Confederate  currency." 

But  the  ordinance  and  statute  were  held  applicable  to  a  note 
given  for  purchase  at  an  administrator's  sale  in  1864,  notwith- 
standing the  administrator  gave  notice  that  he  would  receive 
in  payment  only  such  currency  as  would  pay  the  debts  of  his 
intestate.  "  By  presumption  of  law  the  note  sued  on  was  solv- 
able in  Confederate  currency.""  So,  where  a  judgment  was 
rendered  in  North  Carolina,  in  1864,  on  a  note  given  for  Con- 
federate money  lent  in  1862;  it  was  held,  in  an  action  in  1870, 
by  the  surety  against  the  principal,  the  surety  having  paid  the 
judgment  in  1867,  that  the  claim  was  subject  to  the  same  scale 
as  the  note."  But  the  scaling  laws  were  held  not  applicable 
to  a  note  payable  ten  days  after  peace,  etc.,  in  current  money 
at  that  time.'' 

54  Sowers  v.  Earnhart,  64  N.  C,  96.  See,  also,  Robeson  v.  Brown,  63  N. 
C,  554,  where  it  was  held  that  the  presumption  of  law  was  that  such  an 
obligation  was  solvable  in  Confederate  money. 

55  Maxwell  v.  Hipp,  64  N.  C,  98. 

56  Laws  V.  Rycroft,  64  N.  C,  100.  See,  also,  Williams  v.  Rrockwell,  Id., 
325.  A  note  payable  in  "good  bankable  currency,"  held  subject  to  the  scal- 
ing law.  Green  v.  Brown,  Id.,  553.  So  it  was  held  applicable  to  a  bond 
dated  April  3,  1865,  payable  at  12  months  "in  current  money."  Howard  v. 
Beatty,  Id.,  559. 

57  Alexander  V.  Rintels,  64  N.  C,  634.  See.  also,  Williams  v.  Rockwell, 
Id.,  325.  But  see,  McCombs  v.  Griffith.  67  Id.,  83,  where  it  was  held  not 
applicable  to  a  note  given  for  an  amount  due  in  good  money. 

58  Chapman  v.  Wacaser,  64  N.  C,  532.  In  a  suit  on  a  bond  given  in  Jan- 
uary, 1864.  the  value  of  the  property  for  which  the  bond  was  given,  was  held 
to  be  the  rule  to  be  appHed  under  the  Act  of  1866,  Ch.  38,  in  ascertaining 
the  amount  to  be  recovered,  and  that  the  rule  could  not  be  varied  by  the  fact 
that  the  parties  agreed  at  the  time  that  it  might  be  paid  in  Confederate 
money.    McRae  v.  McNair,  69  N.  C,  12.    So  notes  payable  "in  cvun-ency" 

15 


226  THE  LAW  OF  DAMAGES. 

Ordinances  of  Alabama  and  Georgia— Construction. 

§  236.  Ordinances  of  Alabama  and  Georgia— Con- 
struction.— An  ordinance  adopted  by  the  State  Convention  of 
Alabama  on  the  28th  day  of  September,  18C6,  provided  as 
follows:  "In  all  suits  upon  contracts  made  between  the  1st 
of  September  1861  and  the  1st  of  May  1865,  parol  evidence 
shall  be  admissible  to  prove  what  was  the  consideration 
thereof,  and  whether  or  not  the  parties  thereto  understood  or 
agreed  that  the  same  should  be  discharged  by  a  payment  in 
Confederate  currency  or  treasury  notes,  and  if  so,  or  if  it 
appears  so  from  the  contract,  then  to  show  what  was  the  real 
or  true  value  of  the  consideration  of  the  said  contract,  and 
what  amount  the  plaintiff  is  legally,  justly  and  equitably  enti- 
tled to  receive  according  to  the  contract  by  the  judgment  of 
said  court." 

In  Herbert  v.  Easton,  the  questions  presented  to  the  Supreme 
Court  of  that  State  were  as  to  the  validity  of  the  ordinance,  as 
impairing  the  obligation  of  contracts,  and  as  to  its  proper 
construction. 

The  facts  of  the  case  were  as  follows:  On  the  20th  day  of 
October,  1864,  the  defendants  purchased  of  the  plaintiffs  cer- 
tain lots  in  the  city  of  Mobile,  and  gave  therefor  their  five 
promissory  notes,  the  payment  of  which  they  secured  by  a 
mortgage  on  the  lots.     In  the  mortgage  it  was  stipulated  that 


were  given  for  land  in  1862,  the  value  of  the  land,  and  not  Confederate  cur- 
rency according  to  the  scale,  was  held  to  be  the  amount  which  the  plaintiff 
could  recover.     Bryan  v.  Harrison,  69  N.  C,  151. 

So  a  bond  given  in  1863,  for  land,  though  payable  in  currency  was  held 
liable  to  be  scaled  by  reference  to  the  value  of  the  land,  not  that  of  Confed- 
erate money.  Parker  v.  Carson,  64  N.  C,  563.  And  where  a  bond  had 
been  given  in  1863,  for  the  price  of  a  slave  and  partial  payments  had  been 
made  thereon  in  Confederate  money,  it  was  held,  that  in  order  to  ascertain 
how  much  was  due  thereon  in  National  currency,  the  jury  should  estimate  the 
value  of  the  slave  when  purchased  in  gold,  and  deduct  therefrom  an  amount 
bearing  the  same  proportion  to  that  value  which  the  payments  did  to  the  sum 
specified  in  the  bond,  and  add  to  the  remainder  the  depreciation  of  United 
States  Treasury  notes  at  the  time  of  the  verdict.  Brown  v.  Foust,  64  N.  C, 
672. 


liTON-PATMENT  OF  MONET.  227 


Ordinances  of  Alabama  and  Georgia— Construction. 


these  notes  mi^^ht  be  paid  at  any  time  before  the  maturity  of 
tlie  last  one,  in  Confederate  treasury  notes.  All  the  notes 
were  paid  within  the  time  specified  except  the  last  one  for 
$3,500,  due  April  1st,  1865.  The  suit  was  on  this  note  and  to 
foreclose  tlie  mortgage. 

The  court  held,  that  the  ordinance  only  established  a  rule  of 
evidence  respecting  certain  past  transactions  and  that  it  could 
not  be  said  to  impair  the  obligation  of  contracts.  And  the 
court  further  held,  that  the  obligation  of  the  purchaser  was  not 
to  pay  in  specie  or  its  equivalent;  and  that  if  the  contract  did 
not  show  this,  proof  alitmde,  might  be  supplied  under  the 
ordinance  without  constitutional  objection. 

SaiFold,  J.,  in  delivering  the  opinion  of  the  court  refers  to  a 
similar  law  of  Virginia,  passed  in  1781,  made  for  a  similar 
exigency,  and  with  very  similar  phraseology  and  provisions, 
and  proceeds  to  remark  as  follows:  "  Chief  Justice  Marshall 
in  the  lucid  and  conclusive  interpretation  of  this  act,  in  the 
case  of  Faw  v.  Marstelh7\  which  his  great  knowledge  of  the 
law,  and  accurate  perception  of  justice  so  eminently  qualified 
him  to  give,  says:  'The  act  is  applied  directly  to  the  date  of 
the  contract,  and  the  motive  for  making  it  was,  that  contracts 
entered  into  during  the  circulation  of  paper  money,  ought  in 
justice  to  be  discharged  by  a  sum  differing  in  intrinsic  value 
from  the  nominal  sum  mentioned  in  the  contract,  and  that 
when  the  legislature  removes  the  delusive  standard,  by  which 
the  value  of  the  thing  acquired  has  been  measured,  they 
ought  to  provide  that  justice  should  be  done  to  the  parties.'  " 

He  says  further:  "In  enquiring  w^hat  judgment  will  be 
just  and  equitable,  the  court  can  perceive  no  other  guide  by 
which  its  opinion  ought  in  this  case  to  be  regulated,  but  the 
real  value  of  the  property  at  the  time  it  was  sold.  Faw  v. 
Marsteller,  2  Cranch,  10.  *  ->fr  *  I  apprehend  that  the 
law  of  the  contract  would  have  been  the  same  without  the 
ordinance,  under  the  doctrine  of  usage  and   perhaps  of  the 


228  THE  LAW  OF  DAMAGES. 

Whei'e  not  Applicable— Scaling  Laws  of  Virginia. 

lex  loci.  Evidence  of  usage  or  custom  is  received  for  the  pur- 
pose of  ascertaining  the  sense  and  understanding  of  parties  by 
their  contracts  which  are  made  with  reference  to  such  usasfe 
or  custom.  Reiiner  v.  Bank  of  Columbia.,  9  Wheaton,  581. 
For  the  purpose  of  the  argument  we  may  assert  that  at  the 
time  this  contract  was  made  the  usage  of  the  people  of  Ala- 
bama, in  temporary  contracts  at  least,  was  to  contract  in  view 
of  payment  in  Confederate  currency. 

The  term  'dollar'  at  that  time  in  this  State  was  more 
commonly  used  to  designate  confederate  currency,  than  specie 
or  United  States  treasury  notes.  If  this  is  so,  the  third  sec- 
tion of  the  ordinance  [above  set  out]  does  not  even  change 
the  rule  of  law  which  precludes  the  admission  of  parol  evi- 
dence to  contradict  or  substantially  vary  the  legal  import  of 
a  written  instrument." '" 

§  237.  Where  not  Applicable. — But  a  similar  act  of 
Georgia  was  held,  not  to  apply  to  a  note  given  in  1866,  in 
settlement  of  a  contract  made  during  the  war,  as  it  was  a 
new  contract."^  But  the  statute  of  that  state  is  applicable  to 
a  note  given  for  rent,  made  in  1864;  and  to  a  note  given  in 
1865,  for  confederate  treasury  notes  loaned."' 

§  238.  The  Scaling  Laws  of  Virginia. — The  statutes 
of  Virginia  relating  to  contracts  made  during  the  war,  j^re- 
scribe  no  arbitrary  scale  by  which  damages  on  such  contracts 

59  Herbert  v.  Easton,  43  Ala.,  547;  Fath  v.  Bliss,  Id.,  512.  See,  also, 
under  the  Georgia  Relief  Act,  which  is  similar  to  the  Alaloama  Act,  Philips 
V.  Williams,  39  Geo.,  597.  See,  also,  Hood  v.  Townsend,  40  Id.,  70;  Lamar 
V.  Thornton,  41  Id.,  48.  In  estimating  the  amount  of  damages  in  Alabama, 
on  a  contract  for  the  payment  of  a  sum  of  money  in  Confederate  currency  or 
treasury  notes,  the  true  criterion  is  the  value  of  the  property  sold  in  lawful 
money  at  the  date  of  the  sale,  and  not  the  value  of  the  Confederate  currency 
at  the  time  the  debt  becomes  due.    Wharton  v.  Cunningham,  46  Ala.,  590. 

«°  Owen  V.  Willis,  41  Geo.,  82. 

«•  Clark  V.  McCroskey,  41  Geo.,  137;  Blow  v.  Wliite,  Id.,  293.  See,  also, 
Thomas  v.  Knowles,  40  Geo.,  263;  Cohen  v.  Ward,  42  Geo.,  337,  adjusting 
the  equities  of  the  parties  in  such  cases.  Under  the  scaling  laws  the  damages 
are  largely  in  the  hands  of  the  jury. 


NON-PAYMEKT  OF  MONEY.  229 

Scaling  Laws  of  Virginia. 

shall  be  estimated,  bat  leaves  it  to  the  jury  to  adopt  a  rule  in 
each  case  upon  the  evidence  before  them." 

Where  a  debt  was  contracted  in  that  State  in  January, 
1861,  and  a  note  was  given  therefor  by  the  debtor,  secured 
by  another  as  indorser,  and  was  subsequently  indorsed  by  the 
payee,  and  discounted  by  a  bank  and  afterwards  protested  for 
non-payment,  and  was  in  August,  1862,  paid  in  Confederate 
currency  and  taken  up  by  the  payee,  who  brought  suit  thereon 
against   the    maker  and  original   indorser,  it  was  held   not 

^'  The  provisions  of  the  statute  are  as  follows : 

1 .  In  any  action  or  suit  or  other  proceeding  for  the  enforcement  of  any 
contract,  express  or  impUed,  made  or  entered  into  between  the  first  day  of 
January,  eighteen  hundred  and  sixty-two,  and  the  tenth  day  of  Apiil, 
eighteen  hundred  and  sixty-five,  it  shall  be  lawful  for  either  party  to  show 
by  parol  or  other  relevant  testimony,  what  was  the  true  understanding  and 
agreement  of  the  parties  in  reference  thereto,  either  express  or  to  be  implied, 
in  respect  to  the  kind  of  currency  ia  which  the  same  was  to  be  fulfilled  or 
performed,  or  with  reference  to  which  as  a  standard  of  value  it  was  made  or 
entered  into;  and,  in  an  action  at  law  or  suit  in  equity,  it  shall  not  be  neces- 
sary to  plead  the  agreement  specially  in  order  to  admit  such  evidence ;  pro- 
vided that  when  the  cause  of  action  grows  out  of  a  sale,  or  renting  or  hiring 
of  property  whether  real  or  personal,  if  the  court  (or  where  it  is  a  jury  case, 
the  jur}'),  think  that  under  all  the  circumstances,  the  fair  value  of  the  prop- 
erty sold,  or  the  fair  rent  or  hire  of  it,  would  be  the  most  just  measure  of 
recovery  m  the  action,  either  of  these  principles  may  be  adopted  as  the 
measure  of  recovery  instead  of  the  express  terms  of  the  contract. 

2.  Whenever  it  shall  appear  that  any  such  contract  was,  acording  to  the 
true  understanding  and  agreement  of  the  parties,  to  be  fulfilled  or  per- 
formed in  Confederate  States  treasury  notes,  or  was  entered  into  with  refer- 
ence to  such  notes  as  a  standard  of  value,  the  same  shall  be  liquidated  and 
settled  by  reducing  the  nominal  amount  due  or  payable  under  such  contract, 
in  Confederate  States  treasury  notes,  to  its  true  value  at  the  time  they  were 
respectively  made  and  entered  into,  or  at  such  other  time  as  may  to  the 
court,  or  if  it  be  a  jury  case,  to  the  jury,  seem  right  in  the  particular  case; 
and  upon  the  payment  of  the  value  so  ascertained,  the  party  bound  by  such 
contract,  shall  be  forever  discharged  of  and  from  the  same;  provided  that  in 
all  cases  where  actual  payment  shall  have  been  made  of  any  sum  of  such 
Confederate  States  treasury  notes,  either  in  full  or  in  part,  of  the  amount 
payable  under  such  contract,  the  party  by  or  for  whom  the  same  was  paid 
shall  have  full  credit  for  the  nominal  amount  so  paid,  and  such  payment 
shall  not  be  reduced.    Code  (1873),  pp.  979,  980. 


230  THE  LAW  OF  DAMAGES. 

Scaling  Laws  of  Virginia. 

subject  to  be  scaled  under  the  statute  relating  to  Confederate 
contracts. 

Justice  Moncure,  in  delivering  the  opinion  of  the  court  in 
the  case,  remarks:  "The  counsel  for  the  plaintiff  in  error 
contends  that  the  judgment  ought  to  have  been  rendered  only 
for  the  value  of  the  Confederate  money  aforesaid,  upon  the 
ground  that  the  defendant  in  error,  Cecil,  paid  the  money  as 
a  mere  surety,  and  that  a  surety  can  recover  of  his  principal 
no  more  than  he  has  to  pay  for  the  principal.  It  is  certainly 
true,  as  a  general  rule,  that  the  contract  which  the  law  implies 
between  a  principal  and  his  surety,  is  merely  a  contract  of 
indemnity;  and  that  the  measure  of  the  liability  of  the  prin- 
cipal to  the  surety  is  the  amount  which  the  latter  has  to 
pay  for  the  former  on  account  of  the  suretyship;  so  that  if 
the  discount  at  the  bank  had  been  the  origin  of  the  transac- 
tion in  the  case,  and  the  note  had  been  made,  indorsed  and  dis- 
counted for  the  accommodation  of  the  maker  and  first  indorser, 
the  last  indorser,  Cecil,  would  have  been  a  mere  surety  of  the 
other  parties,  and  could  have  recovered  of  them  only  the  value  of 
what  he  had  to  pay  for  them.  But  such  was  not  the  case.  The 
debt  was  due  to  Cecil  by  a  negotiable  note  made  bv  Dyerle  and 
indorsed  by  Barnett,  and  it  was  a  special  debt.  *  *  *  The 
bank  might  have  released  the  obligation  of  Cecil  as  indorser 
to  it,  upon  any  terms  it  chose  to  accept.  It  might  have  given 
the  note  back  to  him  for  nothing,  and  Cecil  might  still  have 
enforced  its  payment  by  the  original  debtors,  as  a  specie 
debt."" 

63  Barnett  v.  Cecil,  21  Gratt.  (Va.),  93,  (1871).     See,  also,  Michie  v.  Jef- 
fries, Id.,  334. 


PEESONAL  PEOPERTY.  231 


Personal  Property. 


CHAPTEE  XII. 


DAMAGES  ON  CONTEACTS  FOE  THE  SALE  AND 

DELIYEEY  OF   PEESOKAL  PEOPEETY 

— WAEEANTY— FEAUD,   ETC. 

Section  244.    Seller's  Breach. 

245.  Where  the  Price  is  not  Advanced— Rule. 

246.  Where  the  Price  is  Advanced— Kule. 

248.  Reasons  for  the  Highest  Price  as  a  rule  of  Damages. 

249.  Reasons  for  a  Fixed  Rule. 

250.  When  a  Larger  Rule  Obtains. 

252.  The  Doctrine  of  Hadley  v.  Baxendale. 

253.  General  Application  of  the  Rule. 

254.  English  Cases  Illustrating  its  Application. 

255.  Leading  American  Cases. 

256.  Damages  for  the  Non-delivery  of  Stocks. 

257.  Distinction  between  Stocks  and  other  Property. 

258.  Rule  Uniform  in  New  York— Different  in  Pennsylvania. 

259.  No  Distinction  on  Principle. 

260.  Time  and  Place  of  Delivery 

261.  Distinction  between  an  Ordinary  Sale,  and  a  Promise  to 

Deliver  in  Payment  of  a  Debt. 

262.  Form  of  Action  as  Affecting  Damages. 

263.  Where  the  Property  has  Decreased  in  Value. 

264.  Market  Value. 

267.  The  Rule  the  same  in  Torts  as  on  Contracts. 

268.  Part  Performance. 
270.    The  new  Departure. 

272.    Warranty  and  Fraudulent  Representations. 
277.    Liability  for  more  Damages  in  Certain  Cases. 


232  THE  LAW  OF  DAMAGES. 


Seller's  Breach— Price  not  paid  in  Advance. 


281.    Price  Paid— Former  Doctrine. 

284.  The  price  paid  Governs  in  Illinois. 

285.  Reasons  for  the  General  Rule. 

286.  General  Exceptions  to  the  Rule. 

287.  Fraud— Rescission. 

288.  Damages  in  Case  of. 

292.    Of  the  right  to  Rescind  in  case  of  a  Breach  of  ■Warranty- 
Damages. 
298.    Failure  of  the  Purchaser  to  Comply— Damages. 

301.  Waranty  of  Title— Personal  Property. 

302.  Measure  of  Damages  on  Failure  of  Title. 

§  244-  Seller's  Breach.— The  principle  generally  recog- 
nized in  the  measure  of  damages  on  a  breach  of  an  executory 
contract  to  deliver  personal  property  sold,  in  the  absence  of 
fraud  or  of  stipulations  to  the  contrary,  is  that  of  actual  com- 
pensation. The  party  injured  thereby,  may  recover  his  actual 
loss  sustained. 

§  245.  Where  the  Price  is  not  Paid  in  Ad\'ance.— 
In  case  the  price  has  not  been  paid,  this  actual  loss  is  con- 
sidered, at  least  in  ordinary  commercial  transactions  and 
where  the  value  has  advanced,  the  difference  between  the  con- 
tract and  the  market  price  of  the  property,  at  the  time  and  place 
the  delivery  should  have  been  made.' 

'  3  Par.  on  Con.,  p.  205,  et  seg. ;  Phnipotts  v.  Evans,  5  M.  &  W.,  475;  Rand 
V  The  Wliite  Mountains  R.  Co.,  40  N.  H.,  79;  Cannon  v.  Folsom,  2  la.,  101; 
Jemmison  v.  Gray,  29  Id.,  537;  Deere  v.  Lewis,  61  lU.,  2-54;  Day  v.  Dox,  9 
Wend.,  129;  Crosby  v.  Watkins,  12  Cal.,  85;  Bartlett  v.  Blanchard,  13  Gray 
(Mass.),  429;  Zeliner  v.  Dale,  25  Ind.,  433;  White  v.  Tompkins,  52  Pa.  St., 
363-  Bu'shv.  Holmes,  53 Me.,  417;  Doak  v.  Snapp's  Exrs.,  1  Cold.  (Tenn.),  180; 
Daila  V.  Fiedler,  12  N.  Y.  (2  Ker.),  40;  McKnight  v.  Dunlop,  1  Seld.  (N.  Y.), 
537-  Billings  V.  Vanderbeck,  23  Barb.  (N.  Y.),  546;  Baxnai-d  v.  Conger,  6 
McLean  (U.  S.),  C.  C,  497;  Halsey  v.  Hm-d,  Id.,  102.  See,  also,  Rawdon  v. 
Barton.  4  Tex.,  289;  Chapman  v.  Ingram,  30  Wis.,  290;  Hewitt  v.  MiUer,  61 
Barb.  (N.  Y.),  568;  Hall  v.  Pierce,  4  W.  Va.,  107;  Weltner  v.  Riggs,  3  Id., 
445;  Frink  v.'  Tatman,  36  Ind.,  259;  Nixon  v.  Nixon,  21  Ohio  St.,  114; 
Ma^Tie  on  Dam.,  81,  et  seq.  And  for  a  failure  to  deliver  at  the  time,  but  a 
dehveiy  afterwards,  the  damages  are  the  difference  between  the  property  at 
the  time  agreed  to  be  delivered  and  when  it  was  actuaUy  deUvered.  Startup 
V.  Cortazzi,  2  Cr.  M.  &  R.,  165;  6  Tyr.,  697. 


PEKSONAL  PKOPERTY.  233 

Price  paid  in  Advance. 

§  246.    Where  the  Price  has  been  Paid  in  Advance. 

— But  where  the  price  has  beeu  full3'^  paid  in  advance,  a  dif- 
ferent rule  prevails,  at  least  in  some  states,  and  the  vendee 
may  recover  the  highest  market  price  of  the  article  at  the 
place  where  it  should  have  been  delivered,  between  that  time 
and  the  bringing  of  the  suit,  and  even,  in  some  states,  to  the 
time  of  trial,  provided  there  is  no  unreasonable  delay  in  the 
institution  and  prosecution  of  the  action.  This  seems  to  be 
the  doctrine  in  K'ew  York,'  lowa,^  Texas,"  Indiana,"  California,^ 
and  other  states.  This  doctrine  is  based  upon  the  reason  that  the 
plaintiff,  if  he  had  received  the  property,  might  have  disposed 
of  it  at  the  time  when  it  commanded  the  highest  price  and 
that,  as  against  the  vendor,  he  is  entitled  to  the  benefit  of  such 
a  presumption.*  This  rule,  however,  has  not  beeu  universally 
adopted.  On  the  contrary,  the  rule  prevails  in  various  states, 
that  the  measure  of  damages  even  where  the  price  has  been 
paid,  is  the  value  of  the  property  at  the  time  and  place  of 
delivery,  or,  whether  the  price  is  paid  or  not,  the  difference 
between  the  contract  price  and  the  market  value  of  the  article 
at  the  stipulated  time  and  place  of  delivery,  when  the  price 
has  advanced,  together  with  the  amount  paid  on  the  contract. 
And  where  the  price  is  not  paid  or  only  partly  paid,  the  same 
rule  is  uniformly  and  everywhere  recognized.' 


3  West  V.  Wentworth.  3  Cow.,  82;  Davis  v.  Shields,  24  Wend.,  322;  Arnold 
V.  Suffolk  Bank,  27  Barb.,  424;  Clark  v.  Pinney.  7  Cow.,  681. 

*  Davenport  v.  WeUs,  1  Iowa,  598;  Cannon  v.  Folsom,  2  Id.,  101;  Boice  & 
BaiTett  V.  Vincent,  24  Id.,  287. 

5  Randen  v.  Barton,  4  Tex.,  289;  Colvin  v.  McFadden,  13  Id.,  324;  Brasher 
V.  Davidson,  31  Id.,  190.  See,  also.  Stephenson  v.  Price,  30  Id.,  715,  where 
the  same  doctrine  was  appUed  in  an  action  for  a  convei-sion. 

6  Kent  V.  Ginter,  23  Ind.,  1. 

7  Dabovich  v.  Emeric,  12  Cal.,  171;  Maher  v.  Riley,  17  Id.,  415. 

8  West  V.  Pritchai-d,  19  Conn.,  212. 

sBickel  V.  Colton,  41  Miss.,  368;  Ha.skell  v.  Hunter,  23  Mich.,  305; 
Northrup  v.  Cook,  39  Mo.,  208;  Ward  v.  Burr,  5  Black.  (Ind.),  116;  Belden  v. 
Nicholay,  4  E.  D.  S.  (N.  Y.),  14;  HamHton  v.  Gajiyard,  34  Barb.  (N.  Y.), 


234  THE  LAW  OF  DAMAGES. 

Price  paid  in  Advance. 

But  a  distinction  has  been  made  in  some  cases  between 
goods  and  chattels  generally  and  stocks,  which  we  shall  here- 
after notice." 

§  247.  And  where,  between  the  time  of  making  the  con- 
tract and  the  delivery  of  the  property,  the  vendee  makes  a 
contract  for  a  re-sale  of  the  same  property,  at  a  higher  price 
than  the  value  of  the  same  at  the  time  and  place  of  delivery 
under  the  original  contract,  he  cannot,  as  a  general  rule, 
recover  for  the  profits  he  would  have  made  on  the  re-sale." 
Nor  would  the  rule  be  varied  by  an  ofier  of  the  defendant  to 
sell  to  the  plaintiff  like  property,  at  a  price  below  the  value,  on 
the  day  of  delivery.'^  And  where  a  portion  of  the  goods  are 
not  delivered,  the  same  rule  would  apply  on  the  portion  not 
delivered." 

If  the  vendor  puts  it  out  of  his  power  to  comply  with  his 
contract,  by  a  sale  of  a  portion  of  the  goods  to  another  party 
before  the  time  stipulated  for  the  delivery,  the  vendee,  where 
he  has  received  none  of  the  property,  is  entitled  to  the  differ- 

204;  Carrie  v.  White,  37  How.  Pr.,  330;  York  v.  Ter  Plank,  65  Barb.,  316; 
Copper  Co.  v.  Copper  Mining  Co.,  33  Vt.,  92;  HiU  v.  Smith,  32  Vt.,  433; 
Rose  V.  Bozeman,  41  Ala,  (N.  S.),  678;  CofFman  v.  "Williams,  4  Heisk., 
(Tenn.),  233.  See,  also,  2  Kent's  Com.,  480;  Sedg.  on  Dam.,  261,  where  the 
limited  rule  is  approved  in  all  cases.  Gainsford  v.  Carroll,  2  B.  &  C,  624;  9 
Eng.  C.  L.,  204;  Mayne  on  Dam.,  83;  Peterson  v.  Ayer,  13  C.  B.,  353,  where 
it  was  also  held  that  the  vendee  might  recover  the  price  for  which  the  vendee 
has  sold  the  goods.  Josling  v.  Irvine,  6  H.  &  N.,512;  30  L.  J.  (N.  S.)  Exch., 
78;  4  L.  T.  (N.  S.),  251,  where  the  rule  was  adhered  to,  although  the 
vendee  had  re-sold  the  goods  at  an  advance  of  cost  to  him,  but  at  a  much 
less  price  than  the  market  value  at  the  time  they  should  have  been  delivered. 
See,  also,  WilUams  v.  Reynolds,  11  Jur.  N.  S.,  973;  6  B.  &  S.,  495;  34  L.  J. 
Q.  B.,  221;  13  W.  R.,  940;  12  L.  T.  (N.  S.),  728;  Borries  v.  Hutchinson,  18 
C.  B.  (N.  S.),  445;  34  L.  J.,  C.  P.,  169;  13  W.  R.,  386;  11  L.  T.  N.  S.,  771. 

»°  See,  post,  §  257. 

"  Wilhams  v.  Reynolds,  11  Jur.  (N.  S.),  973;  6  B.  &  S.,  495;  34  L.  J.  (N. 
S.),  Q.  B,  221;  13  W.  R.,  940;  12  L.  T.  (N.  S.),  728. 

"  Havemeyer  v.  Cunningham,  35  Barb.  (N.  Y.),  515,  which  also  affirms 
the  doctrine  that  the  value  of  the  property  at  the  time  the  goods  should  have 
been  deUvered,  should  control  where  the  price  has  not  been  advanced. 

'3  Valpy  V.  Oakley,  16  Q.  B.  (A.  &  E.),  941;  Id.,  71  C.  L.  R. 


PEESONAL  PROPERTY.  235 


Reason  for  Highest  Price  as  a  Rule  of  Damages. 


ence  between  the  contract  and  the  market  price  of  all  the 
goods  purchased,  and  not  merely  on  those  which  the  vendor 
had  thus  put  it  out  of  his  power  to  deliver." 

And  where  a  party  had  agreed  to  deliver  to  another  a  crop 
of  corn,  at  the  time  growing  in  the  field,  at  a  stipulated  time 
and  price  and  in  merchantable  order,  and  had  received  fifty 
dollars  thereon,  and  only  one-third  of  the  crop  turned  out 
sound,  and  he  refused  to  deliver  that  portion,  but  insisted  on 
delivering  the  whole,  if  any;  the  court  held  a  refusal  to  deliver 
the  merchantable  corn  a  breach  of  the  contract,  and  that  the 
vendee  should  recover  the  difierence  between  the  contract  and 
the  market  price  of  the  sound  corn,  at  the  time  it  should  have 
been  delivered,  together  with  the  amount  advanced  on  the 
contract,  and  interest  thereon.'"* 

§  248 .  Reason  for  the  Highest  Price  as  a  Rule  of 
Damages  .—The  reasons  assigned  for  allowing  the  purchaser 
the  benefit  of  an  advance  in  the  price  of  property  when  the 
vendor  has  tailed  to  deliver  according  to  contract,  where  the 
purchaser  has  paid  the  price,  are,  that  on  the  failure  to  deliver, 
the  purchaser  being  deprived  of  his  money,  may  not  be  able  to 
purchase  at  that  time.  Besides,  the  defendant  should  not  be 
allowed  to  take  advantage  of  his  own  wrong,  and  by  refusing 
to  deliver  the  property,  enjoy  the  benefit  of  an  advance  upon 
it;  and  if  an  advance  occurs  he  has  had,  or  might  have  had,  the 
benefit  of  it,  and  the  law  should  presume  that  he  had  enjoyed 
the  benefit  of  the  best  price  which  the  property  has  com- 
manded ;  that  the  plaintiff",  if  the  defendant  had  observed  his 
contract,  could  have  enjoyed  the  benefit  of  the  advance; 
that  as  against  the  w^rongdoer,  it  should  be  presumed  that  he 
would  have  improved  the  opportunity ;  and  that  being  deprived 
of  both  the  property  and  the  price,  every  presumption  should 
be  made  in  his  favor. 

's  Crist  V.  Armour,  34  Barb.  (N.  Y.),  378. 
»^  Hamilton  v.  Ganyard,  34  Barb.,  204. 


236  THE  LAW  OF  DAMAGES. 

Reason  for  fixed  Rule— Larger  Rule— Hadley  v.  Baxendale. 

§  249.  Reasons  for  a  Fixed  Rule.— The  reasons  for  the 
general  rule,  where  no  portion  of  the  price  has  been  paid,  are, 
that  the  plaintiff  in  order  to  receive  full  indemnity  should 
receive  only  such  a  sum  as,  united  with  the  price  agreed  to  be 
paid  for  the  article  purchased  or  contracted  for,  would  enable 
him  to  go  into  tlie  market  and  secure  the  same  at  the  time  of 
the  breach.  This,  it  is  claimed,  would  make  him  whole.  And 
the  theory  is,  that  the  vendee  would  thereby  be  placed  in  the 
same  condition  as  though  the  vendor's  agreement  had  been 
fully  complied  with. 

§  250.  When  a  Larger  Rule  Obtains.— But  this  lim- 
ited rule  does  not  apply  where  the  property  has  no  general 
market  value  and  is  not  purchased,  as  an  article  of  commerce, 
for  sale; "  or,  where  the  property  is  purchased,  or  to  be  manu- 
factured and  delivered  for  a  particular  purpose,  which  purpose 
is  known  to  the  vendor,  and  the  vendee  sustains  a  damage  by 
the  non-delivery  at  the  time  stipulated,  which  was  natural  and 
probable  to  result  from  the  non-delivery;  nor  to  cases  where 
the  actual  loss,  though  remote,  was  contemplated  or  may  be 
reasonably  supj)osed  to  have  been  contemplated  by  the  parties 
at  the  time  of  making  the  contract,  as  the  probable  result  of  a 
breach  of  it,  in  which  cases  the  defendant  is  liable  for  such 
damages. 

§  252.    The  Doctrine  of  Hadley  v.  Baxendale.— The 

doctrine  alluded  to  is  sometimes  called  the  doctrine  of  Hadley 
V.  Baxendale  and  has  a  wide  application  to  the  great  variety 
of  contracts.  This  leading  and  famous  case,  was  determined 
in  the  English  Exchequer  Court;  and  as  it  was  one  of  the 
earliest  cases  in  which  the  doctrine  was  distinctly  declared  as 
the  common  law,  and  has  since  been  followed  by  numerous 
decisions  both  in  England  and  in  this  country,  and  is  now 
universally  regarded  as  the  settled  law  of  both  countries,  a 

»7  Clark  V.  Pinney,  7  Cow.,  681. 


PERSONAL  PROPERTY.  237 


The  Doctrine  of  Hadley  v.  Baxendale. 


brief  statement  of  the  facts  of  the  case  and  a  portion  of  the 
opinion  of  the  court  may  be  proper. 

The  defendant,  who  was  a  common  carrier,  contracted  with 
the  plaintiff,  a  miller,  to  carry  a  broken  shaft  of  the  plaintiff's 
mill,  and  deliver  the  same  to  an  engineer  to  serve  as  a  model 
for  a  new  one.  The  plaintiff's  mill  necessarily  remained  idle 
while  the  new  shaft  was  being  made,  of  which  however  the 
defendant  at  the  time  was  ignorant.  The  defendant  did  not 
deliver  the  broken  shaft  to  the  engineer  within  a  reason- 
able time,  in  consequence  of  which  there  was  a  delay  in  the 
manufacture  and  delivery  of  the  new  shaft.  It  was  held  that 
the  plaintiff  could  not  recover  as  damages,  under  the  circum- 
stances, the  loss  of  profits  incurred  by  the  stoppage  of  the 
mill  during  the  unnecessary  delay.  Alderson,  B.  said:  "We 
think  the  proper  rule  in  such  a  case  as  the  present,  is  this: 
"Where  two  parties  have  made  a  contract  which  one  of  them 
has  broken,  the  damages  which  the  other  party  ought  to 
receive  in  respect  to  such  breach  of  contract,  should  be  either 
such  as  may  fairly  and  reasonably  be  considered  as  arising 
naturally,  that  is,  according  to  tlie  usual  course  of  things 
from  such  breach  of  contract  itself,  or  such  as  may  reason- 
ably be  supposed  to  have  been  in  the  contemplation  of  both 
parties  at  the  time  they  made  the  contract,  as  the  probable 
result  of  the  breach  of  it.  Now,  if  the  special  circumstances 
under  which  the  contract  was  actually  made,  were  communi- 
cated by  the  plaintiff  to  tlie  defendant,  and  were  thus  known 
to  both  parties,  the  damages  resulting  from  the  breach  of  such 
contract,  which  they  would  reasonably  contemplate,  would  be 
the  amount  of  injury  which  would  ordinarily  follow  from  the 
breach  of  the  contract  under  those  special  circumstances  so 
known  and  communicated.  But  on  the  other  hand,  if  those 
special  circumstances  were  wholly  unknown  to  the  party 
breaking  the  contract,  he  at  most  could  only  be  supposed  to 
have  had  in  his  contemplation  the  amount  of  injuries  which 


238  THE  LAW  OF  DAMAGES. 

General  Application  of  Rule  in  Hadley  v.  Baxendale— English  Cases,  etc. 

would  arise  generally,  and  in  the  great  multitude  of  cases 
not  affected  by  any  special  circumstances,  from  such  a  breach 
of  contract.  For,  had  the  special  circumstances  been  known, 
the  parties  might  have  especually  provided  for  the  breach  of 
contract,  by  special  terms  as  to  the  damages  in  that  case,  and 
of  this  advantage  it  would  be  very  unjust  to  deprive  them."'* 

§  253.  General  Application  of  the  Rule  in  Hadley 
v.  Baxendale. — The  case  oi  Hadley  v.  Jjaxendale,  related  to 
a  failure  to  deliver  by  a  common  carrier;  but  the  principle 
as  stated  by  the  court,  is  equally  applicable  to  a  failure  to 
deliver  goods  on  a  contract  of  purchase,  or  to  manufacture 
and  deliver  personal  property,  on  a  special  contract  to  that 
effect. 

§  254.  English  Cases,  in  which  the  Rule  is  Hlustra- 
ted. — Where  the  defendant  had  contracted  to  deliver  a  thresh- 
ing machine  to  a  farmer  within  three  weeks,  knowing  it  was 
needed  to  thresh  wheat  in  the  field,  but  did  not  deliver  it  at 
the  time  agreed,  and  after  reasonable  efforts  to  secure  the  crop 
the  plaintiff's  wheat  was  injured  by  the  necessary  delay 
in  saving  the  crop,  and  in  consequence  of  a  rain,  and  he  sus- 

'8  9  Excli.,  341;  26  Eng.  L.  &  E.,  398.    This  doctrine  is  followed  and 
approved  in  the  foUo^ving-  English  cases:     Woodger  v.  Great  Western  R. 
Co.,  2L.  R.,  (C.  P.),  318;  Hamlin  v.  Great  Northern  R.  Co.,  1  H.  &  N.,  408 
Hales  V.  London  &  North  Western  R.  Co.,  4  B.  &  S.,  66  (116  E.  C.  L,  R.) 
Gee  V.  Lancaster,  etc.,  R.  Co.,  6  H.  &  N.,  211;  Wilson  v.  L.  &  Y.  R.  Co. 
9  C.  B.  (N.  S.),  632  (99  E.  C.  L.  R.);  Smeed  v.  Foord,  1  El.  &  EL,  602 
Boyd  V.  Fitt,  14  Irish  L.,  43;  Dunlop  v.  Higgins,  1  H.  &  L.  Cas.,  381 
Waters  v.  Towers,  8  Exch.,  401;  Mayne  on  Dam.,  82,  83;  Potman  v.  Mid- 
dleton,  4  C.  B.  (N.  S.),  322  (93  E.  C.  L.  R.);  CoUard  v.  South  E.  R.  Co.,  7 
H.  &  N.,  79;  Smeed  v.  Foord,  1  E.  &  E.,  602.    See,  also,  Engle  v.  Fitch,  L. 
R.,  3  Q.  B.,  314,  where  the  rule,  supra,  was  applied  in  an  action  against 
the  vendor  of  realty,  for  breach  of  contract.     Cory  v.  Thames  L-on  Works 
Co.,  L.  R.,  3  Q.  B.,  181;  Rolph  v.  Crouch,  L.  R.,  3  Exch.,  44;  Richardson  v. 
Dunn,  8  C.  B.,  N.  S.,  655  (98  E.  C.  L.  R.);  Great  Western  R.  Co.  v.  Red- 
mayne,  1  L.  R.,  (C.  P.),  329,  and  cases  there  cited:    WilUamsv.  Reynolds,  6 
B.  &  S.,  495  (118  E.  C.  L.  R.)    And  the  same  doctrine  applies  to  actions 
founded  upon  tort;  so  far  as  relates  to  the  natural  and  probable  consequences 
of  the  wrong;  MuUett  v.  Mason,  1  L.  R.,  (C.  P.),  559. 


PERSONAL  PEOPERTY.  239 

English  Cases— Kule  Illustrated. 

tallied  a  further  damage  from  a  fall  in  the  market  price  which 
occurred  before  it  could  be  kiln-dried  and  got  ready  for  sale, 
he  was  held  entitled  to  recover  the  loss  by  the  injury  to  the 
wheat,  but  not  to  the  change  in  the  market,  as  the  former 
loss  might  well  have  been  in  the  contemplation  of  the  parties, 
but  not  the  latter," 

So,  where  the  plaintiff  purchased  caustic  soda  of  the  defend- 
ant to  be  shipped  from  England  to  Russia,  part  in  June,  part 
in  July,  and  the  balance  in  August  and  the  defendant  knew, 
at  the  time  of  the  purchase,  that  it  was  purchased  for  ship- 
ment and  re-sale  abroad,  but  did  not  know  that  it  was  intended 
to  be  shipped  for  this  purpose  to  Russia,  until  sometime  before 
the  end  of  August.  The  defendant  neglected  to  deliver  any 
of  the  soda  until  the  month  of  September;  a  portion  was  also 
delivered  in  October.  There  was  then  no  market,  and  the 
plaintiff  lost  the  profits  of  a  re-sale  which  he  had  made  in  Rus- 
sia on  what  was  not  delivered  there,  and  was  obliged,  owing 
to  the  lateness  of  the  season,  to  pay  increased  freights  and 
insurance  on  what  was  shipped  to  Russia.  It  was  held,  that 
he  should  recover  the  loss  of  profits  on  the  re-sale  in  Russia, 
and  the  additional  cost  of  freight  and  insurance,  but  not 
damages  paid  by  the  purchaser  in  Russia,  on  account  of  a  sub- 
sale  made  by  his  vendee  there,  as  the  latter  was  too  remote 
to  fall  within  either  branch  of  the  rule  in  Hadley  v.  Baxen- 
dale:'  

'9  Smead  v.  Foord,  1  E.  &  E.,  602;  28  L.  J.  (N.  S.),  178;  Prior  v.  WUson, 
1  L.  T.  (N.  S.),  549. 

=0  Domes  v.  Hutchinson,  18  C.  B.  (N.  S.),  445;  s.  c.  34,  L.  J.  (N.  S.),  C. 
P.,  169,  supra.  The  doctrine  is  also  illustrated  by  a  recent  case.  The 
plaintiffs,  manufacturers  of  shoes,  contracted  with  a  company  in  London  to 
furnish  them  with  a  quantity  of  military  shoes  for  the  use  of  the  French 
army,  at  a  very  high  price— the  shoes  to  be  delivered  in  London  by  February 
3,  1871.  The  shoes  were  deHvered  at  the  defendant's  station  at  Ketternig 
for  carriage  to  London,  in  time  to  be  deHvered  in  the  usual  course  that  day, 
and  notice  was  given  to  the  company's  station  agent  at  the  time,  that  the 
plaintiffs  were  under  a  contract  to  deUver  the  shoes  the  same  day  to  the  con- 
signees hi  London,  and  that  if  not  so  delivered  they  would  remain  on  their 


240  THE  LAW  OF  DAMAGES. 

Leading  American  Cases. 

§  255.  Leading  American  Cases. — In  Griffin  v.  Colver, 
the  doctrine  is  stated  by  Selden,  J.,  as  follows:  "The  party 
injured  is  entitled  to  recover  all  his  damages,  including  gains 
prevented,  as  well  as  losses  sustained,  and  this  rule  is  subject 
to  but  two  conditions;  the  damages  must  be  such  as  may  fairly 
be  supposed  to  have  entered  into  the  contemplation  of  the 
parties  when  they  made  the  contract,  that  is,  they  must  be 
such  as  might  naturally  be  expected  to  follow  its  violation; 

hands.  The  shoes  were  not  dehvered  by  the  defendant  in  London,  until  the 
4th  of  February,  and  in  consequence  the  vendees  refused  to  accept  the  same, 
and  the  plaintiffs  were  obliged  to  sell  them  for  much  less  than  the  contract 
price,  but  in  consequence  of  the  suspension  of  the  war  the  price  received  was 
as  much  as  could  have  been  obtained  for  them  in  the  market  on  the  3d  of 
February. 

In  an  action  against  the  common  carrier  for  the  damages  sustained  by  the 
non-delivery  of  the  shoes  in  time,  it  was  held  by  the  court  that  the  plaintiffs 
could  not  recover  the  difference  between  the  price  at  which  they  had  con- 
tracted the  shoes  and  that  received  on  the  sale.  And  this  decision  was 
placed  on  the  ground  that  the  damage  was  not  such  as  naturally  arose  ft-om 
the  breach,  or  as  might  be  reasonably  supposed  to  have  been  in  the  contem- 
plation of  the  parties  at  the  time  they  made  the  contract.  Home  v.  Mid.  R. 
Co.,  8  C.  P.  L.  R.,  131;  28  L.  T.  (N.  S.)  Ex.,  Ch.  312.  See,  also,  Great  W. 
R.  Co.  V.  Redmayne,  1  L.  R.  (C.  P.),  329. 

So,  where  the  plaintiffs,  who  were  cotton  spinners,  having  rented  a  mill 
and  employed  hands  to  run  it,  caused  to  be  delivered  to  the  defendants,  at 
Liverpool,  to  be  carried  to  Oldham,  some  bales  of  cotton,  which  were  unrea- 
sonably delayed  in  the  carriage,  whereby  the  plaintiffs,  having  no  other 
cotton  to  work,  lost  the  use  of  their  mill  and  their  laborers  were  unem- 
ployed. 

The  necessity  of  the  plaintiffs  having  the  cotton  to  enable  them  to  operate 
their  mill,  was  not  communicated  to  the  defendants  at  the  time  of  the 
delivery  of  the  freight,  but  was  communicated  immediately  on  the  non- 
arrival  of  it  in  proper  time,  after  which  there  was  also  an  unreasonable  delay 
on  the  part  of  the  carrier  in  delivering  the  same.  It  was  held,  that  the 
defendants  not  having  notice,  at  the  time  of  the  delivery,  that  the  mill  was 
waiting  for  it,  were  not  liable  for  the  expenses  caused  by  the  stoppage,  and 
that  the  wages  paid  and  loss  of  profits,  under  the  circumstajices,  were  not 
the  measure  of  damages.  The  Lancashire  &  Yorkshire  R.  Co.  v.  Gee  et  al., 
6  H.  &  N.,  211;  30  L.  J.  (N.  S.),  11  Exch.,  11;  3  L.  T.  R.  (N.S.),  328.  See, 
also,  British  Columbia  Sawmill  Co.  v.  Nettleship,  L.  R.,  3  C.  P.,  499;  37  L. 
J.  C.  P.,  235;  16  W.  R.,  1046. 

Tlie  first  branch  of  the  rule  in  Hadley  v.  Baxendale,  is  further  illustrated 
in  its  application  to  warranties,  by  the  case  of  Borradaile  v.  Brunton.    The 


perso:n'al  peopektt.  241 


Leading  American  Cases. 


and  they  must  be  certain,  both  in  their  nature  and  in  respect 
to  the  cause  from  which  they  proceed."" 

The  foregoing  statement  is  assumed  to  embrace  the  proposi- 
tion under  the  two  alternative  heads,  in  the  opinion  in  the 
English  case,  both  those  damages  that  arise  naturally  in  the 
usual  course  of  things,  and  those  that  have  been  contemplated 
by  the  parties.  This  doctrine  is  sustained  and  approved  by 
many  American  cases  cited  in  the  annexed  note.°° 

In  Wisconsin,  where  the  seller  had  knowledge,  that  goods 
were  ordered  by  the  purchaser  for  a  particular  occasion,  and 
they  were  to  be  delivered  in  time  for  that  occasion,  and  there 
was  a  failure  of  the  vendor  to  so  deliver,  and  no  sufficient  time 
remained  after  the  breach,  for  the  purchaser  to  purchase  the 
goods  elsewhere  to  supply  the  demand  for  that  occasion,  the 
vendor  was  held  liable  for  such  damages  as  directly  and  natur- 
ally arose  from  the  breach,  although  beyond  the  difference 
between  the  contract  and  the  market  value."  From  the  anal- 
defendant  sold  to  the  plaintiff  a  chain  cable  as  a  substitute  for  a  rope  cable, 
and  wan-anted  it  good  as  a  rope  cable  of  sixteen  inches  for  two  yeaj-s.  The 
cable  broke  withni  that  time,  whereby  the  plaintiff 's  anchor  was  lost.  It  was 
held  that  the  value  of  the  cable  and  anchor  lost  was  the  proper  measure  of 
damages,  as  this  must  have  been  contemplated  by  the  parties  as  the  result  of 
a  failure  of  the  cable  as  warranted,  and  that  it  was  witliin  the  rule  in  Hadley 
V.  Baxendale,  8  Taunt.  535.  The  cases  we  have  furnished  in  this  note  to  illus- 
trate the  application  of  the  rule,  relate  to  other  matters  than  the  special 
subject  under  consideration.  We  shall  have  occasion  to  consider  it  further 
when  we  come  to  treat  of  those  matters. 

=s  16  N.  Y.,  489. 

^Hamilton  v.  McPherson,  28  N.  T.,  72;  Krom  v.  Levy,  48  N.  Y.,  679; 
Crater  v.  Binninger,  33  N.  J.,  (4  Vr.),  513,  a  case  of  fraud;  Richardson  v. 
Chynoweth,  26  Wis.,  656,  where  the  doctrine  was  applied  to  a  breach  of  con- 
tract to  cleUver  personal  property;  Shepard  v.  Milwaukee  Gas-Light  Co..  15 
Wis.,  318;  Hinckley  v.  Beckwith,  13  Wis.,  31;  Abbott  v.  Gatch,  13  Md.,  314, 
Copper  Co.  v.  Copper  Mining  Co.,  33  Vt.,  92;  Ashe  v.  De  Rossett,  5  Jones 
(N.  C),  299;  Baldwin  v.  Bennett,  4  Cal.,  392;  Page  v.  Ford,  12  Ind.,  46; 
Adams  Express  Co.  v.  Egbert,  36  Pa.  St.,  360;  Pittsburg  Coal  Co.  v.  Foster, 
59  Id.,  365;  Wolf  v.  Studebaker,  65  Id.,  459;  Phalan  v.  Andrews,  52  111., 
486. 

=7  Richardson  v.  Chynoweth,  26  Wis.,  Go6,  supra. 

16 


242  THE  LAW  OF  DAMAGES. 

Leading  American  Cases. 

ogies  in  otlier  cases,  tlie  profits  that  might  have  been  made  on 
the  goods  would  be  a  proper  element  of  damages  in  such  a 
case.  For  although  merely  imaginary  profits,  anticipated  from 
some  collateral  transactions,  entered  into  on  the  expectation  of 
a  performance  of  the  original  contract,  are  too  uncertain  and 
remote  to  be  considered  as  an  element  of  damages,''^  still 
those  direct  benefits  and  profits  which  are  the  immediate  result 
of  the  contract  and  constituting  a  part  of  its  direct  object, 
may  well  be  considered  as  proper  elements  of  damages,  and 
usually  perhaps,  may  be  considered  to  have  entered  into  the 
contemj)lation  of  the  parties  as  the  probable  or  certain  results 
of  a  breach  of  it.  And  it  seems  now  well  established  that 
such  profits  may  be  allowed  as  damages."" 

A  recent  case  illustrates  what  probable  profits  will  be  rejected 
as  damages.  The  defendant  had  agreed  to  make  the  plaintifi"  a 
lease  of  certain  lands  for  the  purpose  of  planting  a  peach  orchard 
and  raising  peaches,  for  ten  years.  The  plaintiff  took  posses- 
sion, but  the  defendant  refused  to  make  the  lease,  and  within 
two  years  caused  the  plaintifiPto  be  ejected  therefrom.  It  was 
held  incompetent  to  show  the  probable  future  profits  of  the 
leased  premises,  and  that  the  measure  of  damages  was  the 
value  of  the  lease  at  the  time  of  the  eviction,  subject  to  the 
performance  of  the  contract  on  the  plaintiff' 's  part.^" 

=8  Clare  v.  Maynard,  6  Ad.  &  E.,  519;  Walker  v.  Moore,  10  B  &  C,  416;  2 
Kent's  Com.,  5  ed.,  480,  notes. 

=9  Masterton  v.  Mayor  of  Brooklyn,  7  HiU,  62;  United  States  v.  Speed,  8 
WaU.  (U.  S.),  77;  Boorman V.  Nash,  9  Bam.  &  Cress.,  145;  WaUace  v.  Tumlin, 
42  Geo.,  462;  Shepard  v.  Milwaukee  Gas-Light  Co.,  15  Wis.,  318;  Hinldey  v. 
Beckwith,  13  Wis.,  31;  Story  v.  The  New  York  &  Harlem  R.  Co.,  6  N.  Y., 
85;  Fox  V.  Harding,  7  Cush.  (Mass.),  516;  The  Phila.,  Wil.  &  Bait.  R.  Co. 
V.  Howard,  13  How.  (U.  S.),  307;  Thompson  v.  Jackson,  14  B.  Mon.  (Ky.),  114; 
Cook  V.  Coms.  of  Hamilton,  6  McLean,  C.  C,  612;  Hay  v.  Gronoble,  34  Pa. 
St.  9;  Fletcher  V.  Tayleur,  17  C.  B.,  21;  25  L.  J.,  C.  P.,  65.  See,  also.  Wood 
V.  Bell,  5  El.  &  Bl.,  772;  2  Jur.,  N.  S.,  349;  25  L.  J.,  Q.  B.,  148;  and  s.  c, 
6  El.  &  BL,  355;  25  L.  J.,  Q.  B.,  321,  Ex.  Cham. 

30  Rhodes  v.  Baird,  16  Oliio,  573.  See,  also,  Patterson  v.  Ayre,  13  C.  B., 
353. 


PERSON^AL  PROPERTY.  24a 

Damages  for  Non-Delivery  of  Stocks— Stocks  and  Other  Property. 

§  250.    Damages  for  the  Non-Delivery  of  Stocks.— 

On  general  principles  the  rule  of  damages  for  the  non-deliv- 
erj^  of  goods  and  chattels  generally,  in  ordinary  commercial 
transactions,  or,  in  the  language  of  the  court  in  Clark  v. 
Pinney,  supra,  "  where  the  article  is  intended  for  sale," 
would  equally  apply  to  the  sale  of  stocl's/  although,  as  we 
shall  hereafter  notice,  a  distinction  in  some  states  has  been 
made  in  such  cases,  and,  in  favor  of  the  fluctuating  rule  in 
case  of  stocks,  where  the  price  of  the  stocks,  after  the  purchase 
of  the  same,  to  be  delivered  at  a  future  day,  has  advanced. 

Mr.  Sedgwick,  makes  the  following  observations  on  this 
subject:  " There  appears  to  be  no  solid  reason  for  making 
any  difference  between  stocks  and  any  other  vendible  com- 
modity. Where  stocks  are  loaned,  or  the  price  of  the  stocks 
or  article  is  paid  for,  the  party  entitled  to  the  delivery,  parts 
with  his  property  on  the  faith  of  the  contract;  and  in  either 
case,  is  prevented  from  using  it,  up  to  the  time  of  trial.  The 
question  is  whether,  in  either  case,  the  law  should  act  on  the 
assumption  that  the  plaintiff  would  have  retained  the  prop- 
erty if  the  contract  had  been  complied  with,  till  the  period  of 
the  highest  value,  and  have  realized  that  price,  and  thus  give 
damages  which  are  purely  conjectural."  ' 

§  257.  Distinction  Between  Stocks  and  Other  Prop- 
erty.— But  there  seems  to  be  a  strong  tendency  to  make  a 
distinction  between  stocks  and  other  property  both  in  England 
and  in  this  country.  And  perhaps,  we  may  consider  this  the 
general  rule.  Where  stocks  have  been  borrowed  with  a 
promise  to  replace  them,  or  where  they  have  been  purchased 
and  the  price  paid,  and  there  has  been  a  failure  to  return  or 
deliver,  the  general  rule  is  to  give  its  highest  value  up  to  the 
time  of  trial.^ 

'  Sedg.  on  Dam.,  273. 

'  Lord  Ellenborough,  in  Downer  v.  Black,  1  Stark.,  318;  Harrison  v.  Har- 
rison, 1  Car.  &  P.,  412;  Owen  v.  Kouth,  14  C.  B.  (5  J.  Scott),  327.  But  in 
England  the  general  rule  prevails  in  relation  to  stocks,  where  the  price  has 


244  THE  LAW  OF  DAMAGES. 


Uniform  Kule  in  New  York— Different  in  Pennsylvania— No  Distinction,  etc. 


§  258.  Uniform  Rule  in  New  York— Different  in 
Pennsylvania. — In  New  York,  the  same  rule  now  prevails 
in  tlie  case  of  stocks  as  of  other  property,  where  the  price  has 
been  advanced,  and  that  is  the  highest  value  up  to  the  time 
of  trial. ^  But  the  distinction  alluded  to,  is  made  in  Penn- 
sylvania, where  the  rule  of  fluctuating  value,  generally,  is 
rejected,  but  is  adopted  in  reference  to  stocks.  Thus,  in  The 
Banh  of  Montgomerxj  v.  lieese,  cited  above,  where  the  action 
was  for  the  value  of  stock  wrongfully  withheld  from  the 
plaintiff,  the  court  held,  that  "the  measure  of  damages  if  the 
consideration  for  the  stock  has  been  paid,  is  the  highest 
market  value  between  the  breach  and  the  trial,  together  with 
the  bonus  and  dividends  which  have  been  received  in  the 
mieantime;  but,  if  the  consideration  has  not  been  paid,  the 
plaintiff  should  be  allowed  the  difference  between  it,  and  the 
value  of  the  stock,  together  with  the  difference  between  the 
interest  on  the  consideration  and  the  dividends  on  the  stock."* 

§  259.  No  Distinction  on  Principle.— If  there  is  any 
good  reason  for  a  departure  from  the  general  rule  of  damages 

not  been  advanced.  Shaw  v.  Holland,  15  M.  &  W.,  136;  4  Railw.  Cas.,  150; 
10  Jur.  100;  Van  D.  L.  Co.  v.  CockeviUe,  1  C.  B.,  N.  S.,  732,  Exch.  Cham.; 
Williams  v.  Archer,  5  Man.,  Gran.  &  Scott;  5  C.  B.,  318;  Archer  v.  Wil- 
liams, 2  Car.  &  Kir.,  26;  Mayne  on  Dam.,  81,  et  seq.;  Van  Allen  v.  The  111. 
Cent.  R.  Co.,  7  Bosw.,  515;  Belden  v.  Nicholay,  4  E.  D.S.  (N.Y.).  14,  where 
the  same  doctrine  was  applied  to  stocks  as  other  property,  where  the  price 
had  not  been  paid;  Arnold  v.  Suffolk  Bank,  27  Barb.,  424;  The  Bank  of 
Montgomery  v.  Reese,  26  Pa.  St.,  143;  Kent  v.  Ginter,  23  Ind.,  1,  where  the 
distinction  between  stocks  and  ordinary  merchandise  is  distinctly  stated. 

3  Van  AUen  v.  The  III.  Cent.  R.  Co.,  supra;  Arnold  v.  Suffolk  Bank, 
supra. 

4  26  Pa.  St.,  143.  But  in  England,  where  a  note  was  given  for  the  price 
of  stocks  to  be  deUvered  at  a  future  day,  in  an  action  for  the  non-dehvery  of 
the  shares  according  to  a  contract  of  sale,  the  value  of  the  stocks  in  the 
market  at  the  time  of  the  breach,  was  held  to  be  the  measure  of  damages. 
Bamed  v.  Hamilton,  2  Railw.  Cas.,  624.  See,  also,  Shaw  v.  Holland,  15 
M.  &  W.,  136,  where  the  difference  between  the  contract  price  and  the 
market  price  at  the  time  stipulated  for  delivery,where  the  price  was  not  paid, 
was  held  to  be  the  measure  of  damages. 


PEESONAL  PKOPERTY.  245 

No  Distinction  on  Principle. 

in  such  cases,  on  account  of  advance  payment  of  the  price  of 
the  property,  there  would  appear  to  be  no  sound  reason  or 
principle,  why  a  distinction  should  he  made  between  commer- 
cial transactions  in  reference  to  merchandise  generally,  and 
stocks;  and  much  less  for  adopting  the  fluctuating  rule,  in  the 
case  of  stocks,  where  the  price  has  not  been  paid. 

The  distinction,  based  upon  the  the  fact  of  a  common  prac- 
tice of  speculating,  or  what  is  sometimes  called  "gambling  in 
stocks,"  is  hardly  tenable.  The  operation  by  which  stock 
operators  effect  what  is  called  "a  corner,"  is  the  same 
whether  it  relates  to  stocks  or  ordinary  articles  of  merchan- 
dise. It  is  no  uncommon  thing  for  such  a  result  to  be  effected 
in  respect  to  manufactures  or  the  agricultural  products  of  the 
country.  Nearly  all  operations  in  merchandise,  are  in  one 
sense  speculations,  the  success  of  which  depends  upon  the 
wisdom  of  the  operator,  to  forsee  the  supply  and  demand,  in 
reference  to  the  merchandise  that  is  the  subject  of  the  spec- 
ulation. If  he  is  able  to  calculate  correctl}^  in  these  respects, 
he  is  likely  to  be  successful.  By  his  own  efforts  he  may  affect 
the  market,  and  others  may  aid  him  materially,  to  be  success- 
ful. But,  if  the  speculator  in  stocks,  produces  results  not 
entirely  legitimate  or  consistent  with  a  golden  rule,  it  is  no 
worse  than  similar  acts  of  operators  in  general  merchandise, 
or  the  similar  practices  of  men  in  the  various  pursuits  of 
trade  and  commerce.  The  law  does  not  attempt  to  regulate 
the  conduct  of  business  men  by  a  fine  moral  standard,  nor 
should  it  attempt  to  enforce  one  code  of  ethics  for  the  stock 
speculator,  and  a  different  one  for  the  produce  or  merchandise 
speculator. 

The  distinction,  if  any,  is  one  of  degree  and  not  of  quality 
or  essence.  Besides,  the  parties  to  the  contract,  if  either  are 
in  moral  fault,  are  equally  in  fault — in  pari  delicto.  If  one 
seeks  to  advance  prices,  the  other  seeks  to  depreciate  the 
same.     And  it  would  be  a  fruitless  task  to  attempt  to  discover 


246  THE  LAW  OF  DAMAGES. 

Time  and  Place  of  Delivery. 

the  effect  wliicli  either,  by  immoral  means,  has  produced  on 
the  market.  The  successful  operator  is  generally  no  worse 
than  the  unsuccessful  one;  and  these  things  must  be  left  to 
tlie  forum  of  the  conscience  of  each  individual,  and  not  to 
our  judicial  tribunals.  There  can  certainly  be  no  moral  dis- 
tinction drawn  between  the  small  oj^erator  in  merchandise 
and  common  products  of  the  country,  and  the  extensive 
operator  in  the  same,  or  in  stocks.  Tliere  should  be  a  uni- 
form rule  applicable  to  all  cases  of  the  kind.  And  attempts 
to  investigate  and  determine  the  effects  of  individual  efforts 
to  advance  or  depreciate  prices  of  stocks  or  products  in  the 
market,  would  be  "  embarking  upon  a  vague  search  after  facts 
impossible,  in  most  cases,  to  be  proved  with  any  degree  of 
satisfaction." 

§  260.  Time  and  Place  of  Delivery.— Tlie  time  and 
place  of  delivery  are  matters  of  frequent  importance  and  con- 
troversy, as  questions  which  affect  the  amount  of  damages.  A 
brief  consideration  of  the  subject  may,  therefore,  be  proper. 

"Where  uo  time  is  fixed  for  delivery,  damages  will  generally, 
as  we  have  seen,  be  fixed  according  to  tlie  value  of  the  prop- 
erty at  the  time  when  the  defendant  refuses  to  perform.' 

If  no  time  is  fixed  by  the  contract,  the  article  is  deliverable 
in  a  reasonable  time;  and  what  is  a  reasonable  time  must 
depend  on  the  circumstances  of  each  particular  case;  and  the 
difference,  in  ordinary  cases,  between  the  stipulated  price  and 
the  market  value  when  it  should  have  been  delivered,  is  the 
measure  of  damages.* 

And  in  the  absence  of  any  stipulation  on  the  subject,  or  any 
statutory  regulation,  the  article  should  be  delivered  at  the 
place  where  it  is  at  the  time  of  the  contract.' 

5  Williams  V.  Woods,  16  Md.,  220. 

6  Thompson  v.  Woodruff,  7  Cold.  (Teim.),  401;  Quarles  v.  George,  23  Pick., 
400.    See,  also,  authorities,  §§  244,  264. 

7  2  Kent's  Com.,  662,  8th  ed.,  and  notes. 


PERSON'AL  PROPERTY.  247 

Sale— Promise  to  Deliver— Payment  of  Debt— Action— Decrease  in  Value. 

§  261.  Distinction  between  a  Sale  and  a  Promise  to 
Deliver  Property  in  Payment  of  a  Debt.— But  a  distinc- 
tion has  been  made  between  the  ordinary  case  of  a  sale,  and 
a  contract  to  pay  a  debt  in  specific  personal  property.  In  the 
latter  case  the  property  should  be  delivered  at  the  residence  or 
place  of  business  of  the  creditor  or  payee,  if  the  article  be 
portable;  but  if  it  be  ponderous  and  bulky,  and  not  portable, 
it  is  the  duty  of  the  debtor  to  seek  the  creditor  in  such  a  case, 
and  ascertain  what  place  he  will  appoint  to  receive  the  prop- 
erty, and  to  comply  with  any  reasonable  request  in  that 
respect."  But  if  the  payee  fails  to  elect  where  he  will  receive 
the  article,  or  designates  an  unreasonable  place  for  the  deliv- 
ery, then  the  better  opinion  seems  to  be,  that  the  obligor  may 
deliver  the  articles  at  a  place  which  circumstances  show  to  be 
reasonable  and  convenient  for  the  purposes  intended,  and  pre- 
sumptively in  the  contemplation  of  the  parties,  when  the  con- 
tract was  made." 

§  262.    Form  of  Action,  as  Affecting  Damages.— 

The  amount  of  damages  sometimes  depends  upon  the  form  of 
the  action  at  common  law,  and  the  purchaser  usually  may,  on 
a  fiiilure  of  the  vendor  to  deliver  property  according  to  con- 
tract, elect  to  rescind  the  contract,  and  recover  the  money 
advanced  and  interest,'" 

§  263.    Where  the  Property  has  Decreased  in  Value. 

In  an  action  by  the  vendee  for  a  breach  of  contract  to 

deliver  property,  the  same  rule  applies,  at  least  where  there 
has   been   no   payment,   whether   the   property   advances   or 


sCarrierv.  Carrier,  2N.H.,  75;  Godwinv.Holbrook,  4  Wend.,  377;  Bean  v. 
Simpson,  16  Me.,  49;  Howard  v.  Miner,  20  Id.,  325;  Mingus  v.  Pritcliet,  3 
Dev.,  78. 

9  Admr.  of  Peck  v.  Hubbard,  11  Vt.,  612;  Howard  v.  Miner,  20  Me.,  325; 
Stone  V.  Gilliam,  1  Show.,  149.  See,  also,  as  to  a  contract  to  deliver 
in  a  "reasonable  time,"  State  v.  King,  44  Mo.,  238;  Nixon  v.  Nixon,  21 
Ohio  St.,  114. 

"  Smithurst  v.  Woolston,  5  Watts.  &  S.,  106. 


248  THE  LAW  OF  DAMAGES. 

Market  Value. 

declines  in  value;  and  if  it  is  worth  less  at  the  time  and  place 
of  delivery  than  the  plaintiff  agreed  to  pay  for  it,  he  can 
recover  nothing;  or,  at  most,  only  nominal  damages." 

§  2G4.  Market  Value. — It  will  be  apparent  that  the  ques- 
tion as  to  the  market  value  of  the  property  is  frequently  an 
important  one,  in  determining  the  amount  of  damages.  The 
general  rule  limits  the  damages  to  the  market  value  at  the 
time  and  place  fixed  for  the  delivery,  in  the  absence  of  any 
stipulation  or  agreement  fixing  the  value. 

The  general  rule  is,  that  the  value  must  be  confined  to  the 
time  and  place  designated  for  the  delivery,"  But  it  is  easy 
to  conceive  of  cases  where  the  article  at  the  time  and  place 
designated  may  have  no  market  value  as,  for  instance,  shingles 
in  a  forest,  or  logs  in  a  river,  remote  from  market  and  from 
places  of  general  business;  and,  consequently,  it  may  be 
impossible  to  show  at  the  place  designated  a  market  value. 
But  the  law  does  not  require  impossible  things  — ?da?  non  cogit 
ad  irnpossihilia.  The  rule  in  such  cases  must  be  modified  to 
suit  the  circumstances,  or  it  will  be  discarded  if  necessary  to 
promote  justice  and  afford  the  injured  party  a  remedy. 

And  if  there  is  no  market  value,  or  but  an  uncertain  one, 
the  value  of  the  property  may  be  shown  by  such  prices  on 
sales  as  took  place  at  or  near  the  time  and  place;  and  recourse, 
for  this  purpose,  may  be  had  to  sales  which  were  made  at  the 
nearest  market.'' 

Thus,  in  Massachusetts,  on  a  question  of  value  of  property 

"  Sartup  V.  Cortazzi,  2  Cr.,  Mees.  &  Roscoe,  165;  Rose  v.  Bozeman,  41 
Ala.  (N.  S.),  678;  Bush  v.  Canfield,  2  Conn.,  485;  Maher  v.  Riley,  17  Cal., 
415. 

'2  In  addition  to  authorities  already  cited,  see,  Blydenburgh  v.  Welsh.  1 
Bald.,  331;  Gregory  v.  McDowell,  8  Wend.,  435;  Hanna  v.  Harter,  2  Ark., 
397;  Worthen  v.  WHrnot,  30  Vt.,  555;  Phelps  v.  McGee,  18  111.,  155;  Field 
V.  Kinnear,  4  Banks  (Kan.),  476;  Sedg-.  on  Dam.,  6th  ed.,  333,  note. 

'3  Berry  v.  Dwinel,  44  Me.,  255;  Wemple  v.  Stewart,  22  Barb.  (N.  Y.), 
154.    See,  also,  Young  v.  Lloyd,  65  Pa.  St.,  199. 


PERSONAL  mOPERTT.  249 

Market  Value. 

at  a  certain  time  and  place,  under  such  circumstances,  it  was 
held  proper,  with  other  evidence,  for  the  plaintiff  to  introduce 
evidence  of  the  cost  of  the  goods  in  the  market  where  they 
were  purchased,  adding  the  expenses  of  transportation,  the 
duties,  and  a  fair  allowance  for  profits;  and  also  evidence  of 
the  sale  of  like  articles  for  months  before  and  after  the  sale  in 
question,  and  of  the  purchase  of  some  of  the  goods  for  cash 
by  the  plaintiff  at  advanced  rates  within  two  months  after- 
wards."" 

So,  in  Michigan,  it  has  been  held,  that  damages  in  trespass, 
quare  clausumf  regit,  will  not  be  denied  because  their  nature 
is  such,  that  they  cannot  be  accurately  measured.  If  they 
cannot  be  ascertained  by  a  fixed  rule,  it  was  held  that,  all  the 
facts  and  circumstances  tending  to  show  the  amount  of  the 
damages,  should  be  submitted  to  the  jury;''  and  the  same 
doctrine  would  be  applicable  in  other  cases.  But  the  value  at 
another  time  and  place  is  not  material,  unless  it  tends  to 
prove  the  value  at  the  place  of  delivery,  and  other  evidence 
:s  usually  necessary  to  arrive  at  this,  such  as  the  expenses  of 
transportation  to  the  place  where  the  market  is  shown,  or  a 
sale  of  some  similar  article  at  or  near  the  place  and  time  of 
delivery. 

g  265.— Where  the  value  is  shown  at  the  time  and  place  of 
delivery,  evidence  showing  its  value  elsewhere  is  not  usually 
competent.''  And  proof  of  a  single  sale  is  not  usually  suffi- 
cient to  establish  a  market  value."  In  relation  to  market 
value,  Mr.  Justice  Strong,  in  Trout  v.  Kennedy,  uses  the  fol- 
lowing language:  "If  at  the  particular  time  there  be  no 
market  demand  for  an  article,  it  is  not,  of  course,  on  that 
account,  of  no  value.     What  a  thing  will  bring  in  the  market 


=°  Eaton  V.  Melius,  7  Gray,  (Mass.),  566. 

«  GHbert  v.  Kennedy,  22  Mich.,  117. 

=  Durst  V.  Burton,  47  N.  Y.,  167;  Chapman  v.  Ingram,  30  Wis.,  290. 

=3  Graham  v.  Maitland,  1  Sweeny  (N.  Y.),  149. 


260  THE  LAW  OF  DAMAGES. 


Market  Value. 


at  a  given  time,  is  perhaps  a  measure  of  damages  then,  but 
not  the  only  one.'"*  Kor  can  the  defendant,  in  order  to 
reduce  the  damages,  show  a  conjectural  or  possible  state  of 
things,  as  the  probable  effect  which  the  article  contracted  to 
be  delivered  would  have  had  on  the  market  if  placed  there  at 
the  time.'"  Nor  is  it  proper  to  consider  the  conjectural  or 
probable  effect  upon  the  market  prices,  if  the  plaintiff  had 
gone  into  the  market  at  the  time,  to  purchase  the  property 
which  the  defendant  failed  to  deliver.^^  Nor  would  the  fact, 
that  the  number  of  railroad  ties,  which  the  defendant  had 
failed  to  deliver  according  to  contract,  could  not  have  been 
purchased  for  immediate  delivery,  at  the  time  and  place  and 
when  and  where  they  were  to  be  delivered  by  the  defendant, 
establish  of  itself  that  there  was  no  market  price  of  such  ties, 
at  the  time  and  place  designated." 

So,  in  an  action  for  the  non-delivery  of  lumber  at  Detroit, 
Michigan,  it  was  held  proper  for  a  witness,  who  was  a  dealer 
in  lumber  at  "Wayne,  eighteen  miles  from  Detroit,  and  who 
knew  the  value  of  lumber  at  Wayne  but  not  at  Detroit,  but 
knew  it  was  higher  at  Detroit  than  at  Wayne,  to  testify  as  to 
its  value  at  Wayne." 

And  where  an  action  was  brought  on  the  defendant's  prom- 
ise to  pay  for  logs,  which  were  converted  by  him  while  they 
were  floating  down  the  river  to  plaintiff's  mill  some  distance 
below,  it  was  held  proper  for  the  j^laintiff  to  show  the  value 
of  the  logs  at  the  mill  and  the  expense  of  getting  them  there 
from  the  place  of  conversion.^' 

§  266.  And  where  a  quantity  of  pork,  though  contracted 
for  delivery  at  one  place,  was  known  by  the  vendor  to  be 

=4  47  Pa.  St.,  387. 

=5  Dana  v.  Fiedler,  12  N.  Y.  (2  Kernan),  40;  1  E.  D.  S.  (N.  Y.),  463. 

^  Jemmison  v.  Gray,  29  la.,  537. 

»7  Jemmison  v.  Gray,  Id. 

=8  Savercool  v.  Farwell.  17  Mich.,  308. 

=9  Saunders  v.  Clark,  106  Mass.,  331. 


PEESOITAL  PKOPERTT.  251 

Kule  the  same  in  Torts  as  on  Contracts. 

intended  for  use  in  another,  and  for  a  particular  purpose,  the 
difi'erence  in  value  at  the  latter  place,  between  the  pork  con- 
tracted, for  and  that  received,  was  held  to  be  the  measure  of 
damages.'" 

These  elements  of  damages  might,  in  many  cases,  Avell  be 
placed  on  the  ground  that  thej  were  contemplated  by  the 
parties,  as  the  result  of  a  breach  of  warranty,  or  the  natural 
and  direct  result  of  the  breach  of  the  contract.  And,  where 
cheese  had  been  fraudulently  represented  to  be  of  good  mar- 
ketable quality  in  the  Kew  York  market,  but  proved  to  be 
inferior  and  unmarketable  there,  it  was  held  inadmissible  to 
show  that  it  was  shipped  to  London  and  what  it  netted  the 
plaintiff  there,  to  reduce  the  damages  to  which  he  was  enti- 
tled, which  was  the  difference  between  the  value  as  repre- 
sented and  warranted,  and  the  actual  value  at  New  York,  at 
the  time  it  was  contracted  to  be  delivered." 

In  ISTevada,  where  a  contract  was  made  to  pay  a  certain 
amount  in  gold  coin  or  its  equivalent  in  legal  tender  notes, 
and  no  place  of  payment  was  designated,  it  was  held  that  the 
relative  values  of  the  coin  and  the  currency,  should  be  deter- 
mined at  the  place  and  time  of  trial.'^  But,  the  value  of  the 
articles  promised  to  be  delivered  on  a  sale  for  a  specific  use,  is 
generally  immaterial,  unless  they  are  warranted  suitable  for 
such  purpose.^^ 

§  267.    The  Rule  the  same  in  Torts  as  on  Contracts. 

— The  general  rules  as  to  market  value  in  cases  of  breaches  of 

3°  Converse  v.  Prettyman,  2  Minn.,  229.  But  see,  Lattin  v.  Davis,  Lalor's 
Supp.  to  Hill.  &  Den.,  9,  which  was  an  action  for  a  breach  of  warranty  of 
the  quality  of  apples  purchased  for  the  Canada  market,  but  to  be  deHvered 
at  Barre,  in  the  state  of  New  York,  and  where,  it  was  held,  that  the  meas- 
ure of  damages  was  the  difference  between  the  apples  actually  dehvered 
the«e  and  those  which  should  have  been  delivered  at  Barre,  and  not  in  the 
Canada  market. 

31  Durst  V.  Burton,  2  Lans.  (N.  Y.).  137;  47  N.  Y.,  167. 

3=  WeUs,  Fargo  &  Co.  v.  Van  Sickle,  6  Nev.,  45. 

33  Bouton  V.  Reed,  13  Gray  (Mass.),  530.  If  purchased  for  a  special  pur- 
pose, it  would  be  different.    Id. 


252  THE  LAW  OF  DAMAGES. 

Part  Performance. 

contract  to  deliver  property,  is  the  same  on  general  principles 
as  in  trespass  or  for  a  conversion.  And  the  same  doctrine  has 
been  generally,  if  not  universally,  adopted. 

Thus,  in  Pennsylvania,  where  the  defendants  were  sued  for 
damages  to  the  plaintiff's  rafts  caused  by  an  artificial  flood, 
produced  by  a  dam  illegally  constructed  by  the  defendants  on  a 
creek,  below  which  lay  the  rafts;  but  there  was  no  definite  value 
of  rafts  on  the  creek  where  they  were  injured,  it  was  held 
proper  to  show  the  price  of  similar  rafts  at  the  nearest  market, 
as  some  guide  in  determining  the  value,'*  So,  in  an  action  of 
trover,  where  the  property  had  little  or  no  market  value,  it 
was  held  proper  to  show  its  actual  value  to  the  owner."  But 
we  shall  consider  this  question  further  when  we  come  to  treat 
of  conversion,'" 

§268.  Part  Performance . — "Where  there  is  a  contract 
to  deliver  property  and  a  part  performance,  the  question  fre- 
quently arises  as  to  the  measure  of  damages,  in  an  action  by 
the  seller  against  the  purchaser,  for  the  value  of  the  property 
delivered.  If  the  contract  is  entire,  as  where  the  seller  agrees 
to  deliver  a  certain  quantity  of  produce  for  a  certain  sum,  and 
there  has  been  no  acceptance  of  what  has  been  performed,  or 
waiver  of  performance,  the  general  rule  is  that  there  can  be 
no  recovery,  either  upon  the  contract,  or  a  quantum  valebat. 
But,  where  one  party  contracts  to  deliver  to  another  a  certain 
quantity  of  produce  or  merchandise  at  a  certain  place  and  within 
a  certain  time,  and  delivers  a  portion  according  to  contract,  but 
neglects,  or  refuses  to  deliver  the  balance,  the  better  opinion 
would  seem  to  be,  that  if  the  purchaser  retains  the  property 
delivered,  and  refuses  to  pay  for  the  same,  the  seller  may 

34  Dubois  V,  Glaub,  52  Perm.,  238.  See,  also,  the  rule  on  a  breach  of  con- 
tract to  deliver,  Hazleton  Coal  Co.  v.  Buck  Mountain  Coal  Co.,  57  Pa.*St., 
301.  But,  in  order  to  justify  a  reference  to  a  distant  market,  there  must 
really  be  no  other  nearer.    Coxe  v.  England,  65  Pa.  St.,  212. 

35  Stickney  v.  Allen,  10  Gay  (Mass.),  352. 

36  See,  post,  §  847,  et  seq. 


PEKSONAL  PEOPEETT.  253 

Part  Performance. 

recover  its  value,  less  the  damages  sustained  by  the  purchaser 
by  reason  of  the  non-fulfiliment  of  the  entire  contract.  But 
if  the  purchaser  should  proffer  a  return  of  the  property 
delivered,  no  action  could  be  maintained,  but  the  purchaser  in 
that  case  could  recover,  as  damages,  the  loss  sustained  by  the 
breach  of  the  contract  on  the  part  of  the  seller. 

These  conclusions  are  fairly  deducible  from  the  current  of 
modern  decisions,  although  the  preponderance  of  authorities 
was  formerly  against  a  right  of  recovery  by  the  seller,  where 
he  had  failed  of  a  complete  performance,  and  even  at  the 
present  time  there  is  considerable  conflict  in  the  decisions 
relating  to  the  question. 

The  earlier  authorities,  both  in  this  country  and  in  Eng- 
land, adopted  a  stern  rule,  and  held  the  party  contracting  to 
deliver  merchandise  to  the  letter  of  his  contract,  and  refused 
to  allow  a  recovery  in  such  cases,  either  on  the  contract,  or  a 
quanttiin  valehat.  and  there  was  practically  a  forfeiture  of  the 
property  delivered. 

§  269.  The  same  principles,  applicable  in  case  of  part 
performance  of  a  contract  to  deliver  merchandise,  are  appli- 
cable where  there  is  a  part  performance  of  a  contract  for 
service  for  a  certain  time  and  price,  which  we  shall  hereafter 
consider."  Chancellor  Kent  takes  the  sterner  rule,  as  the  one 
sanctioned  by  reason  and  authority.  In  his  valuable  com- 
mentaries he  observes:  "With  respect  to  part  performance 
of  an  entire  contract  for  the  sale  and  delivery  of  personal 
property,  of  a  given  quantity,  at  a  specified  price  and  time, 
or  for  the  performance  of  certain  labor  and  services,  a  delivery 
of  a  less  quantity  than  that  agreed  on,  or  for  a  refusal  or 
omission  to  perform  the  entire  labor  and  services,  without 
any  act  or  consent  of  the  other  party,  will  not  entitle  the 
party  who  has  delivered  in  part,  or  performed  in  part,  to 
recover   any   compensation  for  the  goods  which  have  been 

37  See,  post,  §  331,  et  seq. 


254  THE  LAW  OF  DAMAGES. 


The  New  Departure. 


delivered  or  the  service  which  has  been  performed.  The 
entire  performance  is  a  condition  precedent  to  the  payment  of 
the  price,  and  the  courts  cannot  absolve  men  from  their  legal 
engagements  or  make  contracts  for  them."  ^' 

This  doctrine  was  undoubtedly  sustained  by  the  general 
current  of  authorities  at  the  time  when  the  learned  author 
wrote  the  foregoing.^*  And  the  principle  has  been  repeatedly 
recognized  by  the  courts  of  New  York,  Massachusetts,  Ohio, 
and  other  states,  that  where  a  party  enters  into  a  special  con- 
tract, for  the  sale  and  delivery  of  certain  property  at  a 
specified  price,  a  full  performance  on  his  part  is  a  condition 
precedent  to  his  right  of  action  against  the  vendee,  for  the 
price  of  any  part  of  the  property  delivered  under  the  con- 
tract."" 

§  270.  The  New  Departure.— But  the  injustice  fre- 
quently resulting  from  the  application  of  this  severe  doctrine 
has  led  to  the  adoption  of  a  more  liberal  rule,  and   recent 

38  2  Kent's  Com.,  509. 

39  Waddington  v.  Oliver,  5  Bos.  &  Pull.,  61,  but  in  this  case  the  time  of 
deliveiy  had  not  expired.  See,  also,  McMillan  v.  Yanderhp,  12  Johnson, 
165;  Jennings  v.  Camp,  13  Id.,  94;  Champhn  v.  Rowley,  13  Wend.,  258;  18 
Id.,  187;  Mead  v.  Dogolyer,  16  Id.,  632;  Stark  v.  Parker,  2  Pick.,  267;  01m- 
steadv.  Beale,  19  Id.,  528;  Steamboat  Co.  v.  Wilkins,  8  Vt.,  54;  Helm  v. 
Wilson,  4  Mo.,  41;  Wooton  v.  Reed,  2  S.  &  M.  (Miss.),  585;  Walker  v. 
Dixon,  2  Stark.,  281;  Kingdom  v.  Cox,  5  C.  B.,  522. 

*>  In  addition  to  cases  cited  in  the  last  note,  see,  also,  the  same  doctrine, 
in  Knight  v.  Dunlop.  4  Barb.  (N.  Y.),  36;  5  N.  Y.,  537;  Lantry  v.  Parks,  8 
Cow.,  63;  MoneUv.  Bums,  4  Denio,  121;  Clark  v.  Smith,  14  John.,  326; 
Page  V.  Ott,  5  Den.,  406;  Reab  v.  Moore,  19  Jolm.,  337.  And  so  when  the 
work  is  not  done  according  to  contract.  Pullman  v.  Coming,  9  N.  Y.  93; 
NeviUe  v.  Frost,  2  E.  D.  S.  (N.  Y.),  62;  Smith  v.  Brady,  17  N.  Y.,  173; 
Harris  v.  Rathbum,  2  Abb.  (N.  Y.),  326;  Glacius  v.  Black,  50  N.  Y.,  145. 
See,  also,  Witherowv.  Witherow,  16  01iio,  238;  Allen  v.  Curies,  6  Ohio  St., 
505;  Faxon  v.  Mansfield,- 2  Mass.,  147;  Moses  v.  Stevens,  2  Pick.  232;  Han- 
son V.  Hampton,  32  Mo.,  408;  Posey  v.  Garth,  7  Id.,  94;  Dickson  v.  Cald- 
well, 17  Id.,  575;  Schnerrv.  Lemp,  19  Id.,  40;  Slater  v.  Emerson,  19  How. 
(U.  S.),  224;  Hutchinson  v.  Wetmore,  2  Cal.,  310;  Martin  v.  Schoenberger, 
8  Watts.  &  S.  (Pa.),  367;  Bryant  v.  StiUwell,  24  Penn.,  314;  Thayer  v. 
Wadsworth,  19  Pick.,  349;  Davis  v.  Maxwell,  12  Met.  (Mass.),  286;  Rice  v. 
Dwight  Man.  Co.,  2  Cush.  (Mass.),  80;  Miller  v.  Goddard,  34  Me.,  102. 


PEESONAL  PEOPEETY.  255 


The  New  Departure. 


authorities  of  great  respectability  and  weight,  have  adopted 
a  more  just  and  equitable  one;  and  while  they  do  not  change 
the  original  contract,  or  make  a  new  one  for  the  parties, 
imply  a  new  contract  from  the  circumstances  and  furuish  an 
adequate  remedy." 

Tlie  leading  English  case  on  this  new  departure  from  the 
original  rule,  is  Oxendale  v.  Wetherell,  which  was  an  action  of 
indebitatus  assumpsit,  to  recover  the  price  of  130  bushels  of 
wheat  sold  and  delivered  by  the  plaintiff  to  the  defendant, 
under  a  contract  to  deliver  250  bushels  at  8  shillings  per 
bushel.  It  was  contended  that  the  plaintiff  had  not  fully 
performed  his  part  of  the  contract,  and  was  not  therefore 
entitled  to  recover  anything.  But  Lord  Tenterden  said:  "  If 
the  rule  contended  for  were  to  prevail,  it  would  follow,  that  if 
there  had  been  a  contract  to  deliver  250  bushels  of  wheat,  and 
249  liad  been  delivered  to  and  retained  by  the  defendant,  the 
vendor  could  never  recover  for  the  249  bushels,  because  he 
had  not  delivered  the  whole."  And  Bagley,  J.,  said:  "The 
defendant  having  retained  the  130  bushels,  after  the  time  for 
completing  the  contract  liad  expired,  was  bound  by  law  to 
pay  for  the  same."  And  Park,  J.,  said:  "While  there  is  an 
entire  contract  to  deliver  a  large  quantity  of  goods,  consisting 
of  distinct  parcels,  within  a  specified  time,  and  the  seller 
delivers  a  part,  he  cannot,  before  the  expiration  of  the  time, 
bring  an  action  to  recover  the  price  of  the  part  delivered, 
because  the  purchaser  may,  if  the  vendor  fail  to  complete  his 
contract,  return  the  part  delivered.  But  if  he  retain  the  part 
delivered,  after  the  seller  has  failed  to  perform  his  contract, 
the  latter  may  recover  the  value  of  the  goods  which  he  has  so 
delivered.""  The  same  doctrine  has,  in  England,  been  fre- 
quently recognized  in  other  cases." 

4°  2  Parsons  on  Con.,  35. 
4'  Oxendale  v.  WethereU,  9  B.  &  C,  386. 

*»  Read  v.  Rann,  10  B.  &  C,  441;  Shipton  v.  Casson,  5  Id.,  378;  Cooke  v. 
Munstone,  4  B.  &  P.,  ^51. 


256  THE  LAW  OF  DAMAGES. 

Warranty  and  Fraudulent  Representation. 

§  271.  In  this  country  there  have  recently  been  numerous 
recognitions  of  this  doctrine.  And  the  tendency  of  modern 
decisions  seems  to  be  in  its  favor,  as  based  on  principles  of 
justice  and  equity,  not  only  in  cases  of  a  failure  to  deliver 
property,  but  of  failure  fully  to  perform  contracts  for  per- 
sonal services,  or  to  manufacture,  repair,  or  construct  any 
specific  article  or  building,  or  do  a  certain  specific  piece  of 
work,  or  to  perforin  any  specific  act." 

§  272.    Warranty  and  Fraudulent  Representation.— 

It  may  be  aflBrmed  as  a  general,  if  not  the  universal  rule,  that 
the  measure  of  damages  for  a  fraudulent  representation,  or  on 
a  breach  of  warranty,  as  to  the  kind  or  quality  of  property 
sold,  is  the  difference  between  the  actual  value  of  the  property 
and  its  value  as  represented  or  warranted.**  To  this  measure, 
however,  there  is  frequently  added  such  incidental  losses  to 
the  plaintiff  as  naturally  and  actually  result  from  the  fraud  or 
breach  of  warranty. 

43  Home  V.  Batchelder,  41  N.  H.,  86;  Bradley  v.  King,  44  lU.,  339.  If 
there  is  no  time  fixed  for  the  payment,  the  inference  is  that  payment  is  to  be 
made  on  delivery.  Metz  v.  Albrecht,  52  111.,  491.  See,  also,  Cox  v.  Way, 
3  Blackf.  (Ind.),  143;  Lamb  v.  BrolasM,  33  Mo.,  51;  Marsh  v.  Richards,  29 
Id.,  99;  Bailey  v.  "Woods,  17  N.  H.,  367;  Davis  v.  Burring-ton,  30  Id.,  517; 
Page  v.  Marsh,  36  Id.,  309;  Clough  v.  Clough,  26  Id.,  27;  Lee  v.  Ashbrook, 
14  Mo,.  378;  Koeltz  v.  Bleekman,  46  Id.,  320;  Fishell  v.  Winans,  38  Barb., 
228;  Leavenworth  v.  Parker,  52  Barb.  (iST.  Y.),  132.  The  reasons  in  support 
of  this  rule  are  particularly  appUcable  to  cases  of  contracts,  for  services  or 
material  to  be  furnished,  where  this  is  a  part  performance.  See,  post,  §  327, 
et  seq. 

44  Durst  v.  Burton,  47  N.  Y.,  167;  Rawley  v.  Woodruff,  2  Lans.,  419; 
Wells  v.  Selwood,  61  Barb.  (N.  Y.),  233  (1872);  Edwards  v.  Collson,  5  Lans. 
(N.  Y.),  324  (1871);  Menimack  Man.  Co.  v.  Quintard,  107  Mass.,  127;  Prink 
v.  Tatman,  36  Ind.,  259;  Lacy  v.  Straughan,  11  la.,  258;  Likes  v.  Baer,  8 
la.,  368;  Street  v.  Chapman.  29  Ind.,  142;  Conor  v.  Dempsey,  49  N.  Y.,  665; 
Tuttle  V.  Brown,  98  Mass.,  205;  Poster  v.  Rogers,  27  Ala.,  602;  Sharon  v. 
Mosher,  17  Barb.,  518;  Carr  v.  Moore,  41  N.  H.,  131;  Page  v.  Parker,  40  Id., 
47;  Fisk  V.  Hicks,  31  Id.,  538;  Page  v.  Parker,  43  Id.,  363;  Clare  v.  Maynard, 
7  Carr.  &  P.,  741.  And  it  makes  no  difference  if  the  actual  value  of  the 
property  is  more  than  the  price  paid;  McAlpine  v.  Lee,  12  Conn.,  129.  See, 
also,  Dingle  v.  Hare,  7  C.  B.  N.  S.,  145;  6  Jur.  N.  S.,  679;  29  L.  J.  C.  P., 
148;  1  L.  T.  N.  S.,  38. 


PERSONAL  PROPERTY.  257 

Warranty  and  Fraudulent  Kepresentation. 

Thus,  in  an  action  for  the  breach  of  warranty  of  the  sound- 
ness of  a  horse,  where  expenses  had  been  incurred  in  conse- 
quence of  the  unsoundness,  it  was  held,  that  the  measure  of 
damages  was  not  only  the  diflference  between  the  actual  value 
of  the  animal  and  its  value  if  it  had  been  sound,  but  the  rea- 
sonable expenses  incurred  by  the  plaintiff  in  consequence  of 
the  unsoundness." 

So,  in  an  action  against  a  manufacturer  for  a  breach  of  war- 
ranty of  a  contract  to  construct  in  a  proper  manner  and 
deliver  two  steam  boilers,  repairs  being  necessary,  it  was  held, 
that  the  necessary  expense  of  repairing  them,  the  loss  of  time 
while  so  engaged,  and  the  increased  quantity  of  fuel  necessa- 
rily consumed  to  generate  steam,  owing  to  defects  in  the  same 
covered  by  the  warranty,  were  natural  and  proximate  results 
of  the  failure,  and  proper  elements  of  damages  which  the 
plaintiff  might  recover." 

But,  in  Georgia,  the  measure  of  damages  for  a  breach  of 
warranty  was  held  to  be  the  difference  between  the  price  paid 
and  the  real  value  of  the  article  at  the  time  and  place  of  the 
sale,  together  with  such  consequential  damages,  if  any,  as 
came  within  the  rule,  excluding  indirect  and  speculative  dam- 
ages." 

In  an  action  for  fraud  in  the  sale  of  diseased  sheep,  where 
there  was  a  warranty  of  soundness,  it  was  held,  that  the  pur- 
chaser could  either  rescind  the  contract,  and,  on  a  return  of 
the  property,  recover  back  the  price  paid,  or  retain  the  same 
and  recover  damages;  and  that  these  damages  should  not  only 
embrace  the  difference  between  the  value  of  sound  sheep  and 
the  sheep  received,  but  also  the  loss  resulting  from  the  com- 
munication of  the  disease  to  other  sheep  of  the  plaintiff, 

«  Murray  v.  Meredith,  25  Ark.,  164. 
46  Phelan  v.  Andrews,  52  111.,  486  (1869). 
»  Clark  V.  Neufville,  46  Geo.  261  (1872). 
17 


258  THE  LAW  OF  DAMAGES. 

Warranty  and  Fraudulent  Representation. 

with  which,  without  the  fault   of   the  plaintiff,  they  were 
mingled."* 

§  273-  So,  in  Vermont,  in  an  action  for  a  breach  of  war- 
ranty of  the  soundness  of  an  animal,  it  was  held  proper  to 
allow,  in  addition  to  the  ordinary  damages,  reasonable  expenses 
incurred  in  taking  care  of  and  trying  to  cure  the  animal."' 

And,  in  England,  in  a  similar  action,  it  was  held  that  the 
expenses  of  keeping  the  animal  for  such  a  reasonable  time  as  was 
necessary  to  effect  a  sale  at  the  best  advantage,  and  the 
expenses  of  selling,  were  proper  items  to  allow  as  damages."" 

And  in  Wisconsin,  in  an  action  for  a  breach  of  warranty 
of  an  article,  where  the  consideration  given  for  the  warranted 
article  consisted  of  another  article,  exchanged  for  it,  evidence 
of  the  value  of  the  exchanged  article  was  held  proper,  as  tend- 
ing to  show  the  value  of  the  article  warranted,  if  it  had  cor- 
responded with  the  warranty." 

So,  in  Massachusetts,  it  is  held  that  where  there  has  been  a 
sale  with  warranty,  and  a  re-sale  of  the  property  by  the  ven- 
dee with  a  similar  warranty,  the  sum  paid  on  a  judgment 
obtained  on  said  latter  warranty,  is  prima  facie  evidence  of 
the  amount  he  can  recover  of  his  vendor.  And,  for  the  pur- 
pose of  determining  the  value  of  the  property,  the  jury  may 

t8  Marsh  v.  Webber,  16  Minn.,  418  (1871).  See,  also,  Jetferey  v.  Bigelow, 
13  Wend.,  518;  Slierrod  v.  Langdon,  21  la.,  518.  So,  in  Texas,  if  the  vendee 
sustains  additional  injury  which  is  the  immediate  consequence  of  the  breach 
of  warranty,  or  a  material  incident  thereto,  he  may  recover  such  damages  in 
addition  to  the  difference  in  value.  Wintz  v.  Morrison,  17  Tex.,  372.  See, 
also,  RandaU  v.  Raper,  1  E.  B.  &  E.,  84;  4  Jur.  N.  S.,  662;  27  L.  J.  Q.  B., 
266;  Mullett  v.  Mason,  1  L.  R.  C.  P.,  559;  12  Jur.  N.  S.,  547;  35  L.  J.  C.  P., 
299;  14  W.  R.,  898;  14  L.  T.  N.  S.,  558;  Rose  v.  Wallace,  11  Ind.,  112; 
Paris  V.  Lewis,  2  B.  Mon.,  375. 

*  Pinney  v.  Andrews,  41  Vt.,  631. 

5°  Clare  v.  Maynard,  7  C.  &  P.,  741.  See,  also,  Ellis  v.  Chinnock,  7  C.  & 
P.,  169;  Chesterman  v.  Lamb,  4  Nev.  &  M.,  195;  Sedg.  on  Dam.,  289. 

s'  Chapline  v.  Warner,  23  Wis.,  448.  See,  also,  Fisk  v.  Hicks,  31  N.  H., 
535. 


PERSONAL  PEOPERTT.  259 

Warranty  and  Fraudulent  Representation. 

consider  the  price  for  which  it  sold.*^  And,  in  an  action  for  a 
breach  of  warranty  of  the  soundness  of  a  slave,  the  reasonable 
medical  and  other  expenses  sustained,  by  reason  of  the 
unsoundness,  were  held  properly  included  as  damages/'  And 
such  damages  are  allowed  in  Alabama,  with  interest  from  the 
time  of  the  payment  of  the  price/^  ]^or  does  the  right  of 
recovery  for  medical  attendance  and  care  depend  upon  the  fact 
of  the  payment  of  the  amount  of  expenses  thus  incurred." 

§  274.  So  in  Texas,  in  an  action  for  fraudulent  represen- 
tations of  the  soundness  of  horses  sold  to  plaintiff,  it  was  held 
that  the  defendant  was  responsible  not  only  for  the  value  of 
the  horses  that  died  by  reason  of  the  unsoundness  but  for  the 
difference  in  value  between  the  living  horses  and  the  price 
paid  for  them,  with  interest  on  said  sums  from  the  date  of 
sale,  and  in  addition  thereto,  for  any  injury  directly  resulting 
from  the  breach  of  warranty,  such  as  disease  imparted  to 
other  animals  without  the  fault  of  the  vendee,  and  the  value 
of  the  care  and  expense  of  the  buyer  in  preserving  the  herd.^*' 
And  the  same  doctrine  has  been  held  in  Indiana."  And  in 
an  action  for  the  breach  of  a  contract  to  construct  and  set  up 
on  a  steamboat,  within  a  specified  time,  engines  of  a  certain 
quality  and  power,  and  the  engines  were  not  delivered  within 
the  time  stipulated,  and  did  not  comply  with  the  stipulation, 
as  to  quality,  the  damage  was  held  to  be,  not  only  the  differ- 
ence between  the  articles  furnished  and  those  contracted  for, 
but  in  addition  thereto,  the  expenses  actually  incurred  by  the 
plaintiff  as  a  consequence  of  a  breach — and  that  these  dama- 
sk Reggio  V.  Braggiotti,  7  Cush.,  166.  See,  also,  Foster  v.  Rogers,  27  Ala., 
602. 

53  Feaginv.  Beasley,  23  Geo.  17. 

54  Roberts  v.  Fleming,  31  Ala.,  683. 

55  Kelly  V.  Cunningham,  36  Ala.  (N.  S.),  78.     See,  also,  Buford  v.  Gould, 
85  Ala.  (N.  S.),  265. 

ss  Minty  v.  Morrison,  17  Tex.,  372.    If  the  contract  is  rescinded  the  dama- 
ges are  the  money  paid  and  interest.    Id. 
57  Rose  V.  Wallace,  11  Ind.,  112. 


260  THE  LAW  OF  DAMAGES. 

WaiTanly  and  Fraudulent  Kepresentation. 

ges  properly  included  the  wages  of  the  officers  and  crew  on 
the  steamboat,  while  they  remained  idle  in  consequence  of  the 
delay  of  the  defendant  to  furnish  the  machinery,  and  such 
farther  time  as  was  consumed  in  testing  the  machinery  fur- 
nished, and  the  exj)ense  of  repairing,  and  procuring  other 
machinery  in  its  stead,  to  which  interest  might  also  be  added/* 

In  Connecticut,  barreled  pork  was  sold  at  the  price  of 
pork  well  packed  and  in  good  barrels,  with  a  warranty  that 
the  barrels  would  not  leak.  After  the  purchase  the  barrels 
were  found  to  leak,  and  thereu]3on  the  plaintiff  re-filled  the 
barrels  with  new  brine,  thereby  expecting  in  good  faith  to 
save  the  pork,  but  the  barrels  continuing  to  leak,  a  portion  of 
the  pork  was  either  spoiled  or  injured  to  such  an  extent  that 
the  loss  exceeded  the  amount  of  the  balance  due  on  the  price  of 
the  same.  The  vendor  was  not  notified  of  the  leaking,  nor  did 
the  vendee  offer  to  return  the  pork  or  re-pack  it  in  new  barrels, 
as  it  appeared  it  was  customary  and  necessary  to  do  in  such 
cases.  Both  parties  were  free  from  fraud.  In  an  action  for  the 
unpaid  balance  of  the  purchase  money,  it  was  held,  that  the 
vendee  was  entitled  to  no  reduction  on  account  of  the  loss  of 
the  pork,  but  only  what  it  would  have  cost  to  procure  new 
and  tight  barrels  and  the  expenses  of  re-packing  the  same.^' 

This  might  well  so  be  held,  on  the  ground  of  a  familiar 
principle  of  law,  which  we  have  already  fully  considered, 
namely:  that  the  wrongdoer  is  not  responsible  for  such  inju- 
ries as  might  have  been  avoided  by  the  injured  party  with 
reasonable  expense  and  care.^" 

§  275.  In  Alabama  where  a  slave  was  sold  with  warranty 
of  soundness,  and  a  short  time  after  the  sale  he  received  a 
gunshot  wound  from  which  he  died;  and  it  appeared  that  the 
wound  proved  fatal  in  consequence  of  a  disease  existing  at 

58  Fisk  V.  Tank,  12  Wis.,  276. 

i9  Hitchcock  V.  Hunt,  28  Conn.,  343.    See,  also,  Ferris  v.  Comstock,  33 
Conn.,  513. 
*°  See,  ante;  §  126,  et  seq. 


PERSONAL  PEOPERTY.  261 

Liability  for  more  Damages  in  Certain  Cases. 

the  time  of  the  warranty,  and  that  but  for  such  disease  he 
would  have  recovered ;  it  was  held  that  the  vendor  was  liable 
for  the  difference  in  the  value  of  the  slave  at  the  time  of  the 
sale,  as  warranted,  and  as  he  was  in  fact,  and  refused  to  allow 
as  damages  the  full  value  of  the  slave,  or  for  a  loss  caused  by 
the  disease  and  wound  combined." 

§  276.  And  where  a  vendee  of  a  chattel  with  warranty, 
has  sold  the  same  with  a  like  warranty,  and  a  judgment  has 
been  recovered  against  the  vendee  for  a  breach  of  the  same, 
and  he  has  been  compelled  to  pay  taxable  costs  in  the  suit, 
this  is  at  least  j^'rima  facie  evidence  of  the  amount  which  he 
should  recover;  and  he  may  recover  the  same  as  damages 
in  a  suit  against  his  vendor,  provided  he  gave  notice  to  the 
vendor  of  the  action  against  himself.  But  he  cannot  recover 
counsel  fees." 

§  277.  Liability  for  More  Damages  in  Certain 
Cases. — The  liability  in  certain  cases,  for  more  extended 
losses  than  the  mere  difference  between  the  value  of  the  article 
as  it  is  with  its  defects,  and  what  its  value  would  be  if  as  war- 
ranted, may  be  illustrated  by  numerous  decisions. 

Thus,  where  goods  are  ordered  for  a  particular  purpose 
known  to  the  seller,  there  is  an  implied  warranty  that  they  are, 
or  will  be  reasonably  fit  and  suitable  for  that  purpose,  and  the 
vendee  may  frequently  recover  such  loss  as  he  has  sustained 
by  the  breach  of  warranty  in  this  respect,  and  which  was,  or 
may  be  reasonably  supposed  to  have  been,  contemplated  by 
the  parties,  as  a  result  of  the  breach,  or  in  case  of  fraud  such 

6'  Marshall  v.  Gantt,  15  Ala.,  682. 

^  Regio  V.  Braggiotti,  7  Cush.,  166;  Lewis  v.  Peake,  7  Taunt.,  153;  Wright 
V.  Chamberlain,  7  Scott,  598;  PenneU  v.  Woodbum,  7  Car.  &  P.,  117;  Mar- 
lattv.  Clary,  20  Ark.,  251;  Coolidge  v.  Brigham,  5  Met.  (Mass.),  68,  which 
was  an  action  for  the  breach  of  warranty  of  the  genuineness  of  a  signature 
to  a  note  sold  to  plaintiff,  where  same  doctrine  was  held. 


262  THE  LAW  OF  DAMAGES. 

Liability  for  more  Damages  in  Certain  Cases. 

damages  as  directly  and  naturally  result  from  the  fraud  or 
breach/^ 

§  278.  In  the  English  Court  of  Queen's  Bench,  in  an  action 
on  a  warranty  of  oxen,  which  had  the  rinderpest  at  the  time 
of  the  sale,  it  appeared  that  the  plaintiff  had  told  the  defend- 
ant that  he  intended  to  put  them  with  his  other  stock,  and 
would  not  take  them  if  they  were  afflicted  with  that  disease, 
on  Avhich  the  defendant  gave  the  verbal  warranty  that  they 
were  free  from  that  disease.  The  oxen  were  placed  with  the 
plaintifi''sothercattle,  nine  of  which  took  the  disease  and  in 
consequence  died.  The  court  held  the  defendant  liable,  not 
only  for  the  value  of  the  oxen  but  also  for  the  nine  other 
cattle,  on  the  principle  laid  down  in  Hadley  v.  Baxendale.^* 

So,  where  the  defendant  had  sold  the  plaintiff  hay  on  which 
white  lead  had  been  accidentally  spilled.  The  defendant  sup- 
posed he  had  removed  all  the  hay  in  which  there  was  lead, 
and  under  this  wrong  impression  sold  the  hay  to  plaintiff 
whose  cow  died  from  the  eating  of  it.  Here  was  an  implied 
warranty  that  the  hay  was  suitable  for  the  purpose  for  which 
it  was  purchased;  and  it  was  held  by  the  court,  that  the 
defendant  was  liable  in  damages  for  the  value  of  the  cow.'° 

So,  where  the  plaintiff  contracted  for  the  purchase  of  cer- 
tain specified  bales  of  manilla  hemp  to  arrive.  The  shipping 
papers  of  the  hemp  were  delivered  and  the  price  paid.  The 
bales  arrived  in  a  damaged  condition.     It  was  held  that  the 

63  Passenger  v.  Thorbum,  35  Barb.  (N.  Y.),  17;  34  N.  Y.,  634;  Jones  v. 
Bright,  5  Bing.,  533;  Olivant  v.  Bayley,  5  Q.  B.,  288;  Getty  v.  Rountree,  2 
Chand.  (Wis.),  28;  Bird  v.  Mayer,  8  Wis.,  362;  Beals  v.  Olmstead,  24  Vt., 
114;  Overton  v.  Phelan,  2  Head  (Tenn.),  445;  Brown  v.  Edgerton,  2  Man.  «fe 
G.,  279.  Story  on  Sales,  454;  Scranton  v.  Tilley,  16  Tex.,  183.  See,  also,  in 
support  of  last  proposition,  ante,  §  272,  et  seq. 

64Knowles  v.  Nunns,  14  L.  T.,  N.  S.,  592,  Q.  B.  See,  also,  MuUett  v. 
Mason,  1  L.  R.,  C.  P.,  559;  12  Jur.,  N.  S.,  547;  35  L.  J.,  C.  P.,  299;  14  W. 
R.,  898;  14  L.  T.,  N.  S.,  558. 

65  French  v.  Vining,  102  Mass.,  132.  See,  also,  Bradley  v.  Rea,  14  AUen 
(Mass.),  20. 


PEESONAL  PKOPEETY.  263 

Liability  for  more  Damages  in  Certain  Cases. 

contract  implied  that  the  hemp  should  be  in  a  merchantable 
condition;  that  as  the  buyer  could  not  determine  its  quality 
by  a  personal  inspection,  he  could  have  no  judgment  about 
the  same ;  that  the  doctrine  of  implied  warranty  was  applicable ; 
and  that  the  measure  of  damages  against  the  vendor  was  the 
difference  in  value  between  what  the  hemp  was  worth  when 
it  arrived,  and  what  it  would  have  been  worth  if  it  had  been 
shipped  in  the  state  in  which  it  ought  to  have  been  shipped."' 

§  279.  But  where  coal  dust  was  warranted  to  contain  no 
dust  of  soft  or  bituminous  coal,  and  was  sold  by  the  vendor 
with  knowled^re  that  it  was  intended  for  the  manufacture  of 
brick,  for  which  soft  coal  dust  was  unfitted,  and  there  was  a 
breach  of  the  warranty,  the  Court  of  Appeals  of  Kew  York, 
held,  that  the  measure  of  damages  was  not  necessarily  limited 
to  the  diiference  in  value  of  the  coal  as  warranted  and  its 
actual  value,  but  would  extend  to  loss  arising  from  its  want  of 
fitness  for  the.  purposes  for  which  it  was  warranted,  and  the 
losses  sustained  by  the  vendee  by  its  use  in  the  manufactures 
for  which  it  was  purchased." 

So,  v^'here  cabbage  seed  was  sold  with  a  warranty  that  it 
would  produce  Bristol  cabbages,  and  there  was  a  breach  of 
the  warranty;  it  was  held,  that  the  measure  of  damages,  was 
the  value  of  the  crop  such  as  warranted,  less  the  expense  of 
raising  the  crop  and  the  actual  value  of  the  crop,  raised  from 
the  seed  sold."'  The  same  doctrine  was  recognized  in  Wis- 
consin, where  the  lessor  of  land  having  covenanted  to  supply 
seed,  and  the  seed  having  proved  inferior,  there  was  a  partial 
failure  of  the  crop.  The  court  held,  that  the  lessor  was  bound 
to  furnish  good  seed,  and  that  the  measure  of  damages  for  the 
breach  of  the  contract,  was  the  difference  in  value  between  a 

«6  Jones  V.  Just.  9  B.  &  S.  141;  3  L.  R.  Q.  B.,  197;  37  L.  J.  Q.  B.,  18;  18 
L.  T.  (N.  S.),  208. 
^  Milbum  V.  Belloni,  39  N.  Y.,  53;  reversing,  34  Barb.,  607. 
«8  Passinger  v.  Thorburn,  34  N.  Y.,  634,  affirming,  35  Barb.,  17. 


264  THE  LAW  OF  DAMAGES. 

Liability  for  more  Damages  in  Certain  Cases. 

crop  which  good  seed  would  have  produced,  and  that  which 
was  produced  bj  the  seed  furnished/' 

But  in  Connecticut  in  an  action  for  a  breach  of  warranty  on 
the  sale  of  seed,  that  it  was  "fresh  and  warranted  to  grow," 
it  was  held,  that  the  measure  of  damages  was  the  cost  of  the 
seed,  the  value  of  the  labor  in  preparing  the  ground  for  it, 
the  value  of  the  labor  in  planting  it,  and  the  interest  on  the 
several  amounts,  less  the  general  benefit  of  the  labor  to  the 
land." 

And  where  there  was  a  sale  of  wool  to  be  made  into  hats, 
with  a  warranty  that  it  contained  no  cotton,  it  was  held,  that 
although  the  vendor  was  aware  of  the  purpose  of  the  vendee 
in  purchasing,  and  that  the  wool  was  unfit  to  make  into  hats, 
still,  the  express  warranty,  excluded  the  implied  one  that  it 
was  fit  for  the  manufacture  of  hats,  and  the  vendor  was  held 
not  liable  for  damages  in  that  respect,  but  only  for  the  differ- 
ence between  the  value  of  the  wool  in  the  market,  as  it  was, 
and  what  it  would  have  been  worth  if  it  had  contained  no 
cotton,  with  interest  on  that  difference." 

§  280.  And  in  Massachusetts,  where  the  defendant  sold 
the  plaintiff  shares  of  stock  of  an  express  company,  with  a 
warranty  that  they  would  be  "  worth  $700,  market  value, 
within  one  year,"  and  the  highest  market  value  during  the 
year  was  $500;  and  the  value  of  the  stock  at  the  end  of  the 
year,  when  the  plaintiff  sold  it,  was  only  $330;  it  was  held, 
that  the  measure  of  damages  was  the  difference  between  the 
$700,  and  the  highest  market  value  during  the  year." 

«9  Flick  V.  Wetherbee,  20  Wis.,  392.  See,  also,  Park  v.  Norris,  Axe  & 
Tool  Co.,  60  Bai-b.,  140;  Page  v.  Pavey,  34  Eng.  Com.  L.,  628. 

7°  Ferris  v.  Comstock,  33  Conn.,  513. 

7'  Prentice  v.  Dike,  6  Duer  (N.  Y.),  220.  This  case  seems  to  oveiTule  the 
case  of  Milbum  v.  Belloni,  supra,  and  is  inconsistent  with  the  current  of 
authorities  above  cited. 

T  Woodward  v.  Powers,  105  Mass.,  108. 


PEESONAL  PKOPERTT.  265 

Price  Paid— Former  Doctrine. 

§  281.  Price  Paid— Former  Doctrine.— A  doctrine 
formerly  held,  was  that  on  a  breach  of  .warranty  of  quality,  the 
price  paid  should  be  considered  the  actual  value  of  the  prop- 
erty sold,  and  that  the  measure  of  damages  was  the  difference 
between  the  jDrice  paid  or  contracted  to  be  paid,  and  the 
actual  value  of  the  property  with  the  defects."  And  this  rule 
still  prevails  in  some  states,  as  we  shall  hereafter  notice. 
But  the  measure  of  damages  where  the  property  has  not 
been  returned,  is  generally  held  to  be  the  difference  between 
its  value  as  it  is,  with  the  defect  warranted  against,  and  its 
value  as  it  would  have  been  without  the  defect,  to  which 
difference  interest  on  the  amount  has  sometimes  been  allowed.'^ 

In  an  action  in  Iowa,  for  a  breach  of  warranty  in  the  sale  of 
bonds  of  the  City  of  Memphis,  Tennessee,  with  semi-annual 
interest  coupons  attached  thereto,  the  petition  alleged  that 
"  the  defendant  agreed  that  the  principal  of  the  bonds  was,  or 
should  be,  guaranteed  and  provided  for  by  a  sinking  fund,  set 
aside  for  that  purpose."  And  it  was  averred,  "that  said 
interest  coupons  on  said  bonds  as  delivered  to  the  plaintiff, 
were  not  paid  at  maturity,  and  that  neither  the  defendant  nor 
the  City  of  Memphis  aforesaid,  have  provided  for  the  pay- 
ment of  the   principal  of  said  bonds,  and  that   neither  the 

"  Caswell  V.  Coare,  1  Taunt.,  566;  Mayne  on  Dam.,  88. 

7*  Foster  V.  Rogers,  27  Ala.,  602;  Worthy  v.  Patterson,  20  Id.,  172;  Lacy 
v.  Strauglian,  11  la.,  258;  Morse  v.  Brackett,  98  Mass.,  205;  Tuttle  v.  Brown, 
4  Gray  (Mass.),  457;  Stems  v.  McCullough,  18  Mo.,  411;  Smith  v.  Steinkam- 
per,  16  Mo.,  150;  Can-  v,  Moore,  41  N.  H.,  131;  Sharon  v.  Mosher,  17 
Barb.  {'S.  Y.),  518;  Conor  v.  Dempsey,  49  N.  Y.,  665;  Street  v.  Chapman, 
29  Inch.  142;  Fales  v.  McKeon,  2  HUt.  (N.  Y.),  53;  Whitmore  v.  South 
Boston  Iron  Co.,  2  Allen  (Mass.),  52;  Clare  v.  Maynard,  6  A.  &  E.,  519;  Cox 
V.  Walker,  Id.,  523;  Majme  on  Dam.,  88.  But  the  price  paid  may  some- 
times be  strong,  though  not  conclusive,  evidence  of  the  value  of  the  property. 
Hughton  V.  Carpenter,  40  Vt.,  588;  Carey  v.  Gruman,  4  Hill.,  625;  Marsh 
V.  Wood.  16  Ala.,  806;  Thornton  v.  Thompson,  4  Gratt.,  121.  And  where 
the  article  has  been  re-sold  by  the  purchaser,  before  the  breach  of  warranty 
has  been  discovered,  evidence  of  the  price  obtained  on  the  re-sale  may  be 
proper  as  a  mode  of  estimating  its  value  as  a  sound  article.  Clare  v.  May- 
nard, supra;  Cox  v.  Walker,  supra. 


266  THE  LAW  OF  DAMAGES. 

Price  Paid— Former  Doctrine. 

defendants  nor  the  City  of  Mempliis  have  set  aside  any  sink- 
ing fund,  or  any  fund  for  the  payment  therefrom  of  the 
interest  on  said  bonds,  or  whereby  the  ultimate  payment  of 
the  principal  of  said  bonds  should  be  paid."  Miller,  J.,  in 
delivering  the  opinion  of  the  Supreme  Court  of  that  State, 
after  deciding  that  the  agreement  constituted  a  warranty, 
proceeds  to  the  question  of  the  measure  of  damages  in  the 
case,  and  remarks  as  follows:  "The  plaintiff  claims  as  dama- 
ges the  difference  between  the  market  value  of  the  bonds, 
such  as  were  in  fact  delivered,  and  the  market  value  of  bonds 
secured  by  a  special  fund  for  their  payment,  in  accordance 
with  defendant's  warranty.  He  says  the  bonds  would,  in  the 
market,  have  been  worth  one  hundred  cents  on  the  nominal 
dollar  thereof,  if  the  defendants  had  kept  their  agreement 
good;  and  the  bonds  actually  delivered  are  worth  only  half 
that  sura  in  the  market,  and  he  asks  for  a  judgment  for  the 
difference,  with  interest. 

While  there  has  been  great  fluctuations  of  judicial  opin- 
ion on  the  question  of  the  measure  of  damages,  in  cases 
of  a  breach  of  warranty  in  the  sale  of  personal  property,  Mr. 
Sedgwick  states  as  a  result  of  the  cases,  that  '  the  true  measure 
of  damages  is  the  difference  between  the  value  the  thing  sold 
would  have  had  at  the  time  of  the  sale,  if  it  had  been  sound 
or  corresponding  with  the  warranty,  and  its  actual  value  with 
the  defect.'  Sedg.  on  Meas.  of  Dam.^  324.  See,  also,  in 
support  of  this  rule.  Van  Allen  v.  111.  Central  R.  Co..,  7 
Bosw.,  515;  Simpkins  v.  Low.,  49  Barb.,  382;  Carey  v.  Gru- 
man,  4  Hill,  625;  Comstock  v.  Hutchison,  10  Barb.,  211; 
Thornton  v.  Thompson.,  4  Gratt,  121;  Woodward  v.  Thataher, 
21Vt.,  580;  Marshal  v.  Wood,  IG  Ala.,  806;  Slaughter  v. 
IfcRae.,  3  La.  An.,  455;  Borrehins  v.  Bevan,  3  Eawle,  23; 
Boherts  v.  Carter,  28  Barb.,  462.  There  are  many  other 
cases-  holding  the  same  rule,  while  some  of  the  earlier  cases 
hold  the  measure  of  damages  to  be  the  difference  between  the 


PEESONAL  PKOPERTY.  267 

Price  Paid— Former  Doctrine. 

price  paid,  or  to  he  paid,  and  the  real  value.  The  rule,  as 
stated  by  Mr.  Sedgwick,  and  contended  for  by  the  plaintiff, 
has  been  adopted  by  this  court.  In  Hahn  v.  Cummings,  3 
Iowa,  583,  the  defendant  pointed  out  and  pretended  to  sell 
plaintiff  one  tract  of  land,  and  fraudulently  conveyed  to  him 
another;  and  it  was  held  that  the  measure  of  damages  was 
the  difference  between  the  two  pieces  of  land.  In  Lncey  v. 
Straug/tan,  11  Iowa,  258,  which  was  an  action  upon  a  breach 
of  warrant}'  of  the  soundness  of  a  horse,  the  measure  of  dam- 
ages was  held  to  be  the  difference  between  the  value  of  the 
horse  answering  the  warranted  character,  and  its  value  at  the 
sale  in  the  condition  in  which  it  really  was.  Likes  v.  Baer,  8 
Iowa,  368;  Gales  v.  Eeynolds,  13  Id.,  1;  and  Moherly  v. 
Alexander,  19  Id.,  162,  affirms  the  rule  laid  down  in  Hahn,  v. 
Cuniraings,  svpraP  '^ 

The  opinion  in  the  foregoing  case  not  only  shows  tliat  the 
doctrine  that  t\\Q  price  paid,  is  disregarded  in  determining  the 
rule  of  damages,  but  also  illustrates  the  general  rule  of  dam- 
ages in  such  cases. 

§  283.  So,  in  New  York,  in  an  action  for  a  breach  of  war- 
ranty of  the  soundness  of  a  horse,  sold  by  the  defendant  to 
the  plaintiff,  for  $90 ;  the  breach  alleged  was  a  disease  of  the 
eyes  at  the  time.  The  court  on  the  trial  ruled  that  the 
measure  of  damages  was  the  difference  between  the  price 
paid,  and  the  value  of  the  horse  with  the  defect.  But  the 
Supreme  Court  of  that  state  held  that  this  was  error.  The 
court  say:  "The  warranty  cannot  be  satisfied  except  by  pay- 
ing to  the  vendee  such  sum  as,  together  with  the  cash  value 
of  the  defective  article,  shall  amount  to  what  it  would  have 
been  worth  if  the  defect  had  not  existed.  ■«•*■«■  'pj^g 
rule  undoubtedly  is  that  the  agreed  price  is  strong  evidence 
of  the  actual  value;  and  this  should  never  be  departed  from 

78  CaUanan  v.  Brown  &  Co.,  31  la.,  333. 


268  THE  LAW  OF  DAMAGES. 

Price  Paid  Governs  in  Illinois— Eeasons  for  General  Kule. 

unless  it  be  clear  that  such  value  was  more  or  less  than  the 
sum  at  which  the  parties  fixed  it."  '* 

§  284.    Tlie  Price  Paid  Governs  in  Illinois.— But  in 

Illinois  the  courts  still  adhere  to  the  rule  making  the  measure 
of  damages  in  such  cases,  the  difference  between  the  price 
paid,  and  the  value  of  the  property  with  the  defect.'"  And 
the  same  doctrine  prevails  in  Connecticut,*'  and  Georgia.*'* 

§  285.  Reasons  for  the  General  Rule.— The  reason  in 
support  of  the  general  rule,  namely:  that  the  measure  of 
damages  is  the  difference  between  the  value  of  the  property 
with  the  defect,  and  its  value  as  represented,  is,  that  the  par- 
ties should  not  be  deprived  of  the  benefits  of  a  good  bargain, 
which  would  sometimes  be  the  case  under  the  other  rule, 
namely:  that  the  measure  of  damages  is  the  difference 
between  the  price  paid  or  contracted  to  be  paid  for  the  prop- 
erty, and  its  actual  value  with  the  defect  warranted  against. 
The  argument  for  the  former  rule  is,  that  if  the  vendor  secures 
a  large  price  for  property,  even  as  warranted,  or  the  vendee 
buys  the  property  for  much  less  than  its  value,  as  warranted, 
they  should  not,  in  the  absence  at  least  of  fraud,  lose  the 
benefits  of  a  good  bargain,  by  any  rule  of  damages  for  a 
breach  of  the  warranty,  which  they  might  do  under  the  rule 
which  makes  the  damages  the  difference  between  the  price 

79  Gary  v.  Gruman,  4  Hill,  625.  See,  also,  Comstock  v.  Hutchinson,  10 
Barb.,  211. 

8°  Morgan  v.  Ryerson,  20  111.,  343;  Crabtree  v.  Kile,  21  lU.,  180. 

8'  McAlpin  V.  Lee,  12  Conn.,  129;  Ferris  v.  Comstock,  33  M.,  513. 

8»  Clark  V.  NeufviUe,  46  Geo.,  261.  But  see,  Hook  v.  Stovall,  26  Id.,  704. 
In  case  of  the  breach  of  the  warranty  of  title,  which  we  shall  more  fully 
consider  hereafter,  the  measure  of  damages  is  the  same  as  on  a  breach  of 
•warranty  of  title  to  real  property,  namely:  the  price  paid  with  interest. 
Burtv.  Dewey,  31  Barb.,  540;  Ware  v.  Weathnall,  2  McC.  (S.  C),  413;  Arthur 
V.  Moss,  1  Oreg.,  193;  Auding  v.  Perkins,  29  Tex.,  348;  Scranton  v.  Tilley, 
16  Id.,  183.  But  tliis  rule  is  held  not  to  apply  where  there  has  been  an 
exchange  of  property,  and  the  price  of  the  articles  exchanged  has  not  been 
fixed.  In  such  a  case  in  Illinois  the  general  rule  prevails.  Walace  v.  Wren, 
32  111.,  146. 


PERSONAL  PROPERTY.  269 


General  Exception  to  Rule. 


paid  or  received  for  the  property  and  its  actual  value  as  war- 
ranted. 

Thus,  if  a  vendor  warrants  a  horse  sound  which  is  unsound, 
and  for  which  he  receives  $150,  and  the  value  of  the  horse  if 
sound,  is  onlj  $100,  and  its  actual  value,  with  the  defect,  is 
onl}^  $75;  here  the  vendor  has  received  $50  more  than  the 
horse  would  be  worth  if  sound.  And  if  the  measure  of  dam- 
ages is  the  difference  between  the  actual  value  and  the  value 
as  warranted,  the  damages  would  be  only  be  $25.  But  if  he 
must  pay  the  difference  between  the  price  received  and  the 
actual  value,  the  damages  would  be  $75;  and  the  vendor 
would  lose  all  benefits  of  his  good  bargain.  On  the  other 
hand,  if  the  value  of  the  horse  as  warranted,  is  $150,  but  the 
vendee  pays  for  it  only  $1C0;  and  its  actual  value  is  $75;  if 
the  measure  of  damages  is  the  difference  between  the  actual 
value  and  the  value  as  warranted,  the  vendee  should  recover 
$75 ;  but  if  it  is  the  difference  between  the  price  paid  and  the 
actual  value,  he  could  recover  only  $25;  and  he  would  thereby 
lose  the  benefits  of  his  good  bargain. 

The  reason  for  the  general  rule  under  all  circumstances 
would  seem  to  be  the  best  in  principle,  and  is  sustained  by  the 
best  arguments,  as  well  as  by  a  preponderance  of  authori- 
ties. 

§  28G.  General  Exception  to  the  Rule.— There  is  also 
a  distinction  made  between  ordinary  wares  and  merchandise, 
and  paintings  and  statuary;  and  in  relation  to  the  latter,  mar- 
ket values  do  not  govern.  In  the  case  of  paintings  and  statu- 
ary, in  esse,  or  manufactured  to  order,  and  probably  articles  of 
virtu  generally,  a  distinction  may  well  be  made,  on  the  ground 
that  frequently  great  intrinsic  value  and  merit  may  exist 
where  there  could  not  be  said  to  be  a  market  value,  and  no 
method  of  determining  the  market  value,  as  there  would  be 
in  the  case  of  ordinary  merchandise.     In  such  cases  it  has 


270  THE  LAW  OF  DAMAGES. 

Fraud— Eescission. 

been  held  proper  to  treat  the  price  paid  as  its  true  vahie  and 
the  measure  of  damages.'* 

And  when  property  has  been  exchanged  and  it  does  not 
appear  that  tlie  money  vahie  of  the  article  warranted,  or  the 
article  given  in  exchange,  was  settled  upon  by  the  parties  at 
the  time  of  the  exchange,  evidence  of  the  value  of  the 
exchanged  goods  may  be  given,  to  show  the  vulne  of  the  arti- 
cle as  warranted. ^^ 

§  287.  Fraud— Rescission. — In  order  to  rescind  a  con- 
tract of  sale  on  the  ground  of  fraud,  it  must  appear  that  the 
party  rescinding  would  not  have  made  the  contract  but  for  the 
fraud,  or  would  not  have  made  it  in  the  same  way  if  the  fraud 
had  not  been  practiced. '* 

Fraud  in  sales  usually  consists  in  misrepresentation  or  con- 
cealment of  a  material  fact,  and  as  a  defense  to  an  action  for 
the  price  of  the  property  sold,  or  to  enable  a  plaintiff  to  recover 
in  an  action  for  the  fraud,  it  must  appear  that  he  was  influ- 
enced by  the  fraud,"  and  that  he  was  not  negligent,  but  exer- 
cised reasonable  vigilance  in  relation  to  the  matter,  for  it  is 
the  vigilant  and  not  the  careless  that  the  law  protects;  vigi- 
lantibus,  non  dormientibas^  jura  suhveniunt.^^  But  the 
maxim  has  no  application  to  a  case  where  the  vendor  resorts 
to  tricks  and  artifice  to  divert  the  purchaser  from  the  facts 
and  the  line  of  inquiry  open  to  him,  and  which  he  might  have 
followed  but  for  such  artifice,  and  have  thereupon  refused  to 
purchase.'' 

84  Gordon  v.  Norris,  49  N.  H.,  376  (1870). 
^s  Chaplin  v.  Warner,  23  Wis.,  448.    See,  also,  ante,  note  74. 
^2  Pars,  on  Con.,  677,  et  seq,  and  780,  et  seq;  Courtney  v.  Carr,  11  la., 
295. 

87  McAleer  v.  Horsey,  35  Md.,  439;  Brown  v.  Leach,  107  Mass.,  364  (1871). 

88  Webb  V.  Odell,  49  N.  Y.,  583;  Mansfield  v.  Watson,  2  la..  Ill;  Holmes 
V.  Clark,  10  la.,  423;  Hallam  v.  Todhunter,  24  la.,  166. 

89  Roseman  v.  Canovan,  43  Cal.,  110  (1872).    See,  also,  Cassell  v.  Herron, 
5  Pa.  L.  J.  Rep.,  250,  which  was  the  case  of  the  sale  of  a  horse  with  a  known 


PEESONAL  PROPERTY.  271 

Damages  in  Cases  of. 

§  288.  Damages  in  Case  of— The  measure  of  damages 
in  case  of  fraudulent  representations  to  the  purchaser,  of  the 
quahtj  or  quantity  of  the  property,  where  there  is  no  negli- 
gence on  the  part  of  the  purchaser,  is  generally  the  same  as 
in  case  of  a  breach  of  warranty,  namely :  the  difference 
between  the  actual  value  of  the  property  with  the  defect,  and 
its  value  as  it  was  represented  to  be  at  the  time  of  the  sale; 
the  price  paid,  being  considered  strong,  but  not  conclusive  evi- 
dence of  its  value  as  represented." 

But  where  the  fraud  and  deceit  was  willful  and  character- 
ized by  gross  malice,  the  measure  of  damages  may  be  extended 
to  cover  all  such  consequential  losses  as  naturally  flow  from 
the  wrong,  and  may,  in  aggravated  cases,  be  even  exemplary.^" 

Thus,  where  a  dealer  in  cattle  sold  a  cow,  fraudulently  rep- 
resenting her  as  free  from  infectious  disease,  knowing  that  she 
was  not,  and  the  plaintiff  placed  her  with  other  cattle  which 
caught  the  disease  and  died,  the  plaintiff,  in  an  action  for  the 
fraud,  was  held  entitled  to  recover  as  damages,  not  only  the 
loss  on  the  cow  sold,  but  the  value  of  all  the  cows  that  died." 

And  in  a  similar  case  in  Iowa,  where  the  defendant  sold  the 
plaintiff  a  lot  of  sheep,  falsely  representing  them  to  be  free 
from  "scab  "  or  "foot  rot,"  and  they  were  placed  with  other 

(Jefect— "glanders,"  which  the  defendant  rendered  latent  by  the  use  of  pow- 
ders and  concealed  it  thereby  from  plaintiff ;  held,  to  avoid  the  contract,  or 
any  note  given  for  the  purcKase  money.  See,  also,  McFadden  v.  Robinson, 
35  Ind.,  24. 

9'  Page  V.  Parker,  40  N.  H.,  47;  43  Id.,  363;  Morse  v.  Hutchins,  102  Mass., 
439;  Carr  v.  Moore,  41  N.  H..  131;  Warren  v.  Cole,  15  Mich.,  265;  Hahn 
V.  Cummings,  3  la,,  583;  Wilcox  v.  The  Iowa  Wesleyan  University  32  la., 
367;  Bondurant  v.  Crawford,  22  la.,  40;  Mayne  on  Dam.,  88. 

92  Thompson  v.  Burgey,  36  Pa.  St.,  403;  Stetson  v.  Croskey,  52  Pa.  St., 
230;  Nye  v.  Merriman,  35  Vt.,  438;  Likes  v.  Baer,  8  la.,  368;  McAvoy  v. 
Wright,  25  Ind.,  22. 

93  MuUett  V.  Mason,  1  Law  R.  (C.  P.),  559;  14  L.  T.  N.  S.,  558;  12  Jur.  N. 
S.,  547  See,  also,  Knowles  v.  Nunn,  14  Law  T.  R.,  N.  S.,  592;  1  L.  R.  C. 
P.,  559;  12  Jm-.  N.  S.,  547;  35  L.  J.  C.  P.,  299;  Paris  v.  Lewis,  2  B.  Mon. 
(Ky.),  275;  Bradley  v.  Rea,  14  AUen,  20;  Hill  v.  Balls,  2  H.  &  N.,  299;  27 
L.  J.  Ex.,  45. 


272  THE  LAW  OF  DAMAGES. 

Damages  in  Cases  of. 

sheep  of  the  plaintiff's,  whereby  they  became  diseased,  the 
damage  thereby  sustained  being  in  consequence  of  the  fraud- 
ulent acts  of  the  defendants,  they  were  held  liable  for  the 
same."  And  the  same  doctrine  has  been  held  in  a  similar 
case  in  Yermont;  the  defendant  being  presumed  to  anticipate 
that  the  animals  he  sells  will  be  placed  with  others,  and  that 
such  losses  are  not  only  a  natural  consequence  of  the  wrong- 
ful act,  but  may  well  be  presumed  to  have  been  contemplated 
by  the  parties  as  a  result  of  the  breach  of  warranty  or  of  the 
fraudulent  representation." 

And  so  in  Texas,  in  Mentz  v.  Morrison,  where  the  defend- 
ant sold  to  plaintiff  a  lot  of  horses,  which  he  knew  to  be 
infected  with  a  contagious  disease,  and  concealed  the  same 
from  the  plaintiff,  who  gave  a  fair  price  for  sound  horses;  it 
was  held,  that  the  plaintiff  might  elect  to  rescind  the  contract, 
in  which  case  he  could  recover  the  price  paid;  but,  that  in 
case  he  did  not  so  elect,  he  was  entitled  to  recover  the  value 
of  the  horses  that  died  and  the  difference  in  value  of  the  sur- 
viving horses  and  the  price  paid  for  them,  with  interest  on 
these  sums  from  the  time  of  sale;  also  the  value  of  his  time 
spent  in  the  care  and  preservation  of  the  horses  and  the 
expenses  incurred  therein.  The  court  further  held  the 
defendant  liable  for  the  injury  to,  and  loss  of,  the  other  horses, 
to  which  the  disease  was  communicated  from  those  purchased, 
without  the  fault  of  the  vendee." 

§  290.  And  where  there  are  several  false  representations, 
the  rule  of  damages  is  the  difference  between  the  actual  value 
of  the  property,  and  its  value  estimated  by  such  of  the  rep- 
resentations as  were  most  falsely  and  fraudulently  made;  or,  in 

^*  Sherrod  v.  Langdon,  21  la.,  518. 

55  Packard  v.  Slack,  32  Vt.,  9.  See,  also,  Barnum  v.  Vandusen,  16  Conn., 
200;  Jeffrey  v.  Bigelow,  13  Wend.,  518;  Crater  v.  Binninger,  33  N.  J.  L. 
(4  Vr.),  513. 

97  Mentz  V.  Morrison,  17  Tex.,  872.  See,  also,  Wheeler  v.  Randall,  48 
111.,  182. 


PERSONAL  PROPERTY.  273 


Eight  to  Rescind  in  Case  of  Breaeli  of  Warranty— Damages. 


other  words,  the  vendee  has  tlie  benefit  of  the  highest  rate  of 
damages,  to  w^hich  tlie  most  favorable  warranty  or  the  most 
fraudulent  acts  of  the  defendant  may  entitle  him. "'  But 
it  is  evident  that  in  an  action  to  recover  back  the  price  j^aid, 
on  the  ground  of  fraud  or  for  the  deceit,  where  the  plaintifi" 
retains  the  property  purchased,  and  it  has  any  value,  such 
value  should  be  allowed  the  defendant.*' 

It  is  difficult  to  present  the  law  of  damages  fully  in  cases  of 
fraud  in  the  sale  of  personal  property,  without  some  consid- 
eration of  the  law  relating  to  the  general  subject  of  fraud. 
But  a  full  presentation  of  it  would  carry  us  beyond  the  proper 
limits  and  scope  of  a  treatise  of  this  kind. 

We  shall  hereafter  refer  to  the  subject  in  its  connection 
with  covenants  and  contracts,  relating  to  the  sale  of  lands. 
The  reader  is  also  referred  to  the  cases  cited  in  treating  of  the 
extended  liability  of  parties  in  cases  of  torts  and  aggravated 
wrongs."" 

§291.  In  conclusion  of  the  subject  we  would  say,  that 
allowance  for  damages  of  this  character,  is  frequently  made 
by  way  of  setoff  or  counter-claim,  under  the  modern  practice, 
in  an  action  by  the  vendor  for  the  price.  The  same  principles 
are  applicable  in  such  cases  in  the  measure  of  the  defendant's 
damages,  and  he  may  setoff  the  same  against  the  amount  due 
on  the  consideration." 

§  292.  Of  the  Right  to  Rescind  in  Case  of  Breach 
of  Warranty  — Damages.  — Some  diversity  of  opinion 
exists  in  reference  to  the  right  to  rescind  a  contract  of  sale  of 


9^  Page  V.  Parker,  43  N.  H.,  363.  See,  also,  in  case  of  fraudulent  war- 
ranty of  soundness  of  a  slave.  Johnson  v.  Johnson,  2  La.  An.,  67;  Petterson 
V.  Bum,  3  Id.,  655. 

99  McLaren  v.  Long.  25  Geo.,  708. 

^°°  See,  Ante,  §  69,  et  seq. 

'°  Jackson  v.  Jackson,  47  Geo.,  99;  Capuro  v.  Builders'  Ins.  Co.,  39  Cal., 
123;  FisheU  v.  Winans,  38  Barb.  (N.  Y.),  228;  Gibson  v.  Marquis,  29  Ala., 
668;  Perley  v.  Balch,  23  Pick.,  284. 
18 


274  THE  LAW  OF  DAMAGES. 

Eight  to  Eescind  in  Case  of  Breach  of  Warranty— Damages. 

personal  property  where  the  sale  is  unconditional  but  there 
is  a  breach  of  an  express  warranty  of  the  quality  of  the 
property.  The  right  so  to  do,  even  in  the  absence  of  fraud, 
has  been  maintained  in  Massachusetts,"  Maryland,'^  Iowa," 
and  other  states. 

But  the  general  doctrine  is  that  a  simple  breach  of  war- 
ranty gives  the  vendee  no  right  to  rescind.  Where,  however, 
fraud  accompanies  the  warranty,  it  is  generally,  if  not  uni- 
versally, held  to  warrant  a  rescission  of  the  sale  and  a  recovery 
of  the  price  paid  by  the  vendee." 

In  Dorr  v.  J^isher,  supra,  Shaw,  C.  J.,  said:  "A  warranty 
is  not  strictly  a  condition,  for  it  neither  suspends  nor  defeats 
the  completion  of  the  sale,  or  the  vesting  of  the  thing  sold  in 
the  vendee,  nor  the  right  to  the  purchase  money  in  the  ven- 
dor. And  notwithstanding  such  warranty,  or  any  breach  of 
it,  the  vendee  may  hold  the  goods,  and  have  a  remedy  for  his 
damages  by  action.  But  to  avoid  circuity  of  action,  a  war- 
ranty may  be  treated  as  a  condition  subsequent,  at  the  election 
of  the  vendee  who  may,  upon  a  breach  thereof,  rescind  the 
contract  and  recover  back  the  amount  of  his  purchase  money 
as  in  cases  of  fraud." 

"  Perley  v.  Balch,  23  Pick.,  284;  Conner  v.  Henderson,  15  Mass.,  319; 
Kimble  v.  Cunningham,  4  Mass.,  502;  Dorr  v.  Fisher,  1  Cush.,  271;  Bartlett 
V.  Drake,  100  Mass.,  176;  Bryant  v.  Isburgh,  13  Gray,  607  (1859). 

'^  Taymon  v.  Mitchell,  1  Md.  Ch.,  496;  Hyatt  v.  Boyle,  5  GiU  &  J.,  121; 
FrankUn  v.  Long,  7  Id.,  407;  Rutter  v.  Blake,  2  Harr.  &  J.,  353. 

'3  Rogers  v.  Hanson,  35  la.,  283. 

•4  Thornton  v.  Wynn,  12  Wheat.,  193;  Withers  v.  Greene,  9  How.  (U.  S.), 
213;  Lyon  v.  Betram,  20  Id.,  149;  Voorhees  v.  Earl,  2  Hill,  288;  Gary  v. 
Gruman,  4  Id.,  626;  Muller  v.  Eno,  14  N.  Y.,  601;  Lightburn  v.  Cooper,  1 
Dana.,  273;  Ease  v.  John,  10  Watts,  109;  Allen  v.  Anderson,  3  Humph., 
581;  West  V.  Cutting,  19  Vt.,  536;  Mayor  v.  Dwinell,  29  Id  ,  298;  Matteson 
V.  Holt,  45  Id.,  336;  Hoodly  v.  House.  32  Id.,  180;  Milton  v.  Rowland,  11 
Ala,  732;  Scranton  v.  Mechanics'  Trading  Co.,  37  Cal.,  130;  Marston  v. 
Knight  29  Me.,  341;  Cutler  v.  Gilbreth,  53  Id.,  176;  Campbell  v.  Fleimng,  1 
Adol.  &  E.,  40;  Kellogg  v.  Denslow,  14  Conn.,  411;  Towers  v.  Barrett,  1 
Term.,  133;  Pateshall  v.  Tranter,  4  Nev.  &  Man.,  649. 


PEESOXAL  PKOPERTY.  275 

Right  to  Rescind  in  Case  of  Breach  of  'Warranty— Damages. 

§  293.  In  such  cases  the  purchaser  has  a  choice  of  two 
remedies:  he  may  rescind  the  contract  and  return  the  article 
purchased,  and  recover  the  price  paid,  or  may  stand  by  the 
bargain  and  recover  on  the  warranty  the  damages  he  may 
have  sustained,  which  would  be  the  difference  between  the 
value  of  the  property  as  it  is,  with  the  defects,  and  as  it 
should  have  been  according  to  the  warranty,"  to  which 
interest  is  sometimes  added.'* 

§  294.  Fraud  often  accompanies  a  warranty  of  quality  on 
the  sale  of  property,  as  where  there  is  a  knowledge  on  the 
part  of  the  vendor  of  defects  covered  by  the  warranty."  And 
where  fraud  authorizes  a  rescission  of  a  sale,  but  a  simple  war- 
ranty does  not,  if  the  warranty  is  also  fraudulently  made,  and 
with  knowledge  of  defects  warranted  against,  then  the  vendee 
may  rescind,  as  well  as  where  there  is  an  exj^ress  stipulation 
to  that  effect,  and  recover  the  price  paid.'' 

§  295.  The  right  of  the  vendee  to  rescind  for  a  breach  of 
warranty  of  quality,  was  recentlv  affirmed  by  the  Supreme 
Court  of  Iowa,  after  a  full  examination  of  the  authorities.'^ 
Day,  J.,  in  a  well  reasoned  opinion  in  the  case,  says:     "The 

's  See  authorities  cited,  supra,  note;  also,  Callanan  v.  Brown,  31  la.,  333; 
Sharon  v.  Mosher,  17  Barb.  (!^r.  Y.),  518;  Reggio  v.  Braggiotti,  7  Cush. 
(Mass.),  166;  Tuttle  v.  Brown,  4  Gray  (Mass.),  457;  Morse  v.  Brackett,  98 
Mass.,  205;  Street  v.  Chapman,  29  IncL,  142;  Foster  v.  Rogers,  27  Ala.,  602; 
Worthy  v.  Patterson,  20  Id.,  172;  Stearns  v.  McCullough,  18  Mo.,  411; 
Andreev.  Steinkampler,  16  Mo.,  150;  Verdier  v.  Trowell,  6  Rich.  (S.  C), 
L.,  166;  Lane  v.  Lantz,  27  Md.,  211;  Fielder  y.  Starkin,  1  H.  Black.,  17; 
Kellogg  V.  Denslow,  14  Conn..  411;  Warring  v.  Mason,  18  Wend.,  425; 
Thompson  v.  Botts,  8  Mo.,  710;  Bon-ekins  v.  Bevan,  3  Rawle,  23;  Carter  v. 
Stennel  10  B.  Mon.,  250;  Milton  v.  Rowland,  11  Ala.,  7.32;  Ferguson  v. 
Oliver,  8  Smeed  &  M.,  332;  Franklin  v.  Long,  7  Gill.  &  J.,  407. 

'6  Smith  V.  Cozart,  2  Head.  (Tenn.),  526;  Fales  v.  McKeon,  2  Hilt.  (N. 
Y.),  53;  Lacy  V.  Straughan,  11  la.,  258;  Tuttle  v.  Brown,  4  Gray  (Mass.), 
457;  Whitmore  v.  South  Boston  Iron  Co.,  2  Allen  (Mass.),  52;  CaiTV.  Moore, 
41  N.  H.,  131;  Foster  v.  Rogers,  27  Ala.,  602. 

'7  Sherrod  v.  Langdon,  21  la.,  518;  2  Kent's  Com.,  480,  et  seq. 

'^  See  authorities  cited,  ante,  note  14. 

'9  Rogers  v.  Hanson,  85  la.,  283  (1872.) 


276  THE  LAW  OF  DAMAGES. 

Right  to  Rescind  in  Case  of  Breach  of  "Warranty— Damages. 

authorities  are  irreconcilably  in  conflict  as  to  the  right  of  a 
purchaser  with  warranty,  upon  a  breach  of  warranty  to 
rescind  the  contract  and  recover  the  purchase  price.  As  a 
result  of  the  authorities,  Parsons  states,  that  the  purchaser 
may  return  the  goods  forthwith,  and  if  he  does  so  without 
unreasonable  delay,  this  will  be  a  rescission  of  the  sale,  and  he 
may  sue  for  the  price,  if  he  has  paid  it,  or  defend  against  an 
action  for  the  price,  if  one  be  brought  by  the  seller.'"  At  the 
same  time  he  concedes  that  some  authorities  of  great  weight, 
limit  his  right  to  return  the  goods  for  a  breach  of  warranty  to 
cases  of  fraud,  or  where  there  is  an  express  agreement  to  that 
effect  between  the  parties."  "  And  the  learned  judge,  after 
setting  forth  the  contrary  doctrine,  as  stated  by  Mr.  Story  in 
his  work  on  the  Law  of  Sales,"*  and  the  opinion  of  Shaw,  C. 
J.,  in  Don  v.  Fislier^^  and  other  authorities,  in  favor  of  the 
doctrine,  proceeds  to  say:  "The  doctrine  of  the  Massachu- 
setts cases,  though  perhaps  not  sustained  by  the  greater 
number  of  authorities,  is,  to  our  minds,  the  more  reasonable 
and  just.  We  know  of  no  satisfactory  reason  why  one  who 
desires  a  good  article  and  is  willing  to  pay  a  price  which  will 
command  it,  should  be  required  to  keep  an  inferior  article  at 
a  lesser  price.  Such  a  construction  of  the  law  substitutes  for 
the  party's  contract,  an  agreement  which  he  did  not  make, 
and  requires  him  to  accept  an  article  which  he  would  not 
have  purchased  if  he  had  known  of  its  defects.  The  true  rule, 
it  seems  to  us,  is  to  give  the  vendee  his  option  to  retain  the 
purchased  article  and  recover  the  damages  sustained,  or  to 
restore  it  within  a  reasonable  time,  and  recover  the  price 
paid."  " 

'°1  Par.  on  Con.,  5  ed.,  592. 

"  1  Pars,  on  Con.,  593. 

'=  Story  on  Sales,  §  421. 

'3 1  Cush.  (Mass.),  271. 

•■»  See,  also.  Page  v.  Dickerson,  28  Wis.,  694,  where  the  purchaser  of  a 
patent  was  induced  to  purchase  it  by  false  representations  as  to  its  novelty 
and  value,  the  purchaser  being  entirely  ignorant  of  the  matter,  and  the  seller 


PEPwSONAL  PKOPERTY.  277 

Eight  to  Kescind  in  Case  of  Breach  of  Warranty— Damages. 

§296.  On  this  subject  Chancellor  Kent  says:  "If  the 
sale  is  absolute,  and  the  contract  remains  open  and  unre- 
scinded,  and  without  any  agreement  to  rescind,  the  vendee  of 
the  unsound  article  must  resort  to  his  warranty,  unless  the 
vendor  knew  of  the  unsoundness,  and  the  vendee  tendered  a 
return  of  the  article  within  a  reasonable  time."  '^ 

It  is  evident  that  respectable  authorities  are  ranged  on 
either  side  of  the  question.  It  seems  to  be  generally  conceded 
that  fraud  in  the  sale  warrants  a  rescission  of  the  contract, 
and  as  we  have  suggested  fraud,  is  common  where  there  is 
warranty.  For  where  there  is  knowledge  on  the  part  of  the 
vendor  at  the  time  of  a  sale,  that  the  goods  are  not  as  war- 
ranted by  him,  there  is  also  fraud;  and  in  such  cases  at  least, 
it  may  be  said  in  accordance  with  the  almost  uniform  decis- 
ions, that  the  contract  may  be  rescinded, 

§  297.  The  rescission  of  a  contract  of  course,  requires  a 
return  or  offer  to  return,  of  the  property,  if  of  any  value, 
forthwith  or  as  soon  as  the  defect  is  discovered,  and  that  the 
vendor  be  placed  in  statu  quo;  or  the  plaintiff  must  furnish 
some  good  and  sufficient  excuse  for  not  so  doing.'" 

And  although  notice  of  the  rescission  is  generally  necessary 
to  be  given,  still  it  is  necessary  only  when  the  party  rescind- 
ing has  derived  some  benefit  from  the  contract,  and  which 

an  expert,  and  the  patent  of  very  little  value;  it  was  held,  that  the  purchaser 
was  entitled  to  a  rescission  of  the  contract  of  sale,  and  a  return  of  the  personal 
property  transferred  by  him  to  the  defendant  in  payment,  or  to  the  value  of 
such  property  if  the  defendant  refused  to  return  the  same. 

's  2  Kent's  Com.,  480;  Thornton  v.  Wynn,  12  Wheat.,  183;  Parsons  v. 
Sexton,  4  M.  G.  «fe  S.,  899;  West  v.  Cutting,  19  Vt.,  536;  Freeman  v.  Chute, 
3  Barb.,  424. 

'sPerley  v.  Balch,  25  Pick.,  283;  Connor  v.  Henderson,  15  Mass.,  314 
Johnson  v.  Walker,  25  Ark.,  196;  EUington  v.  King,  49  111.,  449  (1870) 
WiUiamson  v.  Moore,  2  Dis.  (Ohio),  30;  Lane  v.  Latiner,  41  Geo.,  171 
Underwood  v  West,  52  111.,  397;  Young  v.  Stevens,  48  N.  H.,  133;  Dillon  v. 
Anderson,  43  N.  Y.,  231;  Burge  v.  Cedar  Falls  R.  Co.,  30  la.,  244,  consent 
of  parties  to  a  rescission  may  be  implied,  Wheedon  v.  Fisk,  50  N.  H.,  125; 
Janets  v.  Morton,  44  Mo.,  275. 


278  THE  LAW  OF  DAMAGES. 

Failure  of  Purchaser  to  Comply— Damages. 

benefit,  as  we  have  seen,  he  must  restore  to  the  other  party; 
and  where  he  cannot  do  this,  but  must  contine  to  enjoy  some 
advantaire  from  the  contract  he  cannot  rescind.' 

§  298.  Failure  of  the  Purchaser  to  Comply— Dam- 
ages.— Where  the  contract  fixes  the  price  of  the  article  sold 
and  delivered,  this  settles  the  question  of  damages  in  a  suit 
for  the  price,  and  where  the  price  is  not  fixed  by  the  contract, 
the  amount  recoverable  w^ould  generally  be  the  market  value. 

In  an  action  for  damages  for  tlie  vendee's  failure  to  receive 
and  pay  for  the  goods,  the  vendor  may  always,  where  he  has 
fulfilled  on  his  part  and  where  the  value  has  declined,  retain 
the  same,  and  recover  the  difi'erence  between  the  market  value 
at  the  time  and  place  stipulated  for  delivery,  and  the  contract 
23rice.°  And  when  the  vendor  retains  possession  of  the  article, 
and  the  vendee  refuses  to  receive  it,  the  vendor  is  the  agent 
of  the  vendee,  at  least  he  may  so  elect  to  consider  himself, 
and  may  proceed  to  re-sell  the  property,  or  any  part  thereof 
which  the  vendee  refuses  to  receive,  and  the  vendee  is  charge- 
able with  any  difference  in  price  agreed  to  be  paid  by  him, 
and  the  actual  price  realized  on  a  re-sale,  which  was  fairly 
conducted,    if  less  than  the  contract  price." 

And  in  such  cases  it  has  been  held,  that  in  order  to  have 
this  rule  apply,  the  sale  should  be  made  in  a  reasonable  time, 

'  See  further  on  this  subject,  Ripley  v.  Hazelton,  3  Daly  N.  Y.,  320;  Dall 
V.  Kathman,  23  La.  An.,  486;  Manahan  v.  Noyes,  52  N.  H.,  232;  Bene- 
dict V.  Bachelder,  24  Mich.,  255;  Sanborn  v.  Bachelder  51  N.  H.,  426;  Bruce 
V.  Davenport,  1  Abb.  (N.  Y.),  233;  Gales  v.  BUss,  43  Vt.,  299, 

'  Hewitt  V.  Miller,  61  Barb.  (N.  Y.),  567,  (1872);  Chapman  v.  Ingram,  30 
Wis.,  290;  Schnebley  v.  Shirtcliff,  7  Phil.  (Pa.),  236,  (1869);  Hull  v.  Pierce, 
4  W.  Va..  107,  (1870);"  McNaught  v.  Dodson,  49  lU.,  446.  (1869);  Gibbons  v. 
United  States,  8  Wall.  (U.  S.),  269.  See,  also,  Boorman  v.  Nash,  9  B.  &  C, 
145.  And  the  rule  in  Vermont  is  not  varied  by  pa"yment  iir  advance,  Hill  v. 
Smith,  32  Vt.,  433:  Rider  v.  Kelly,  32  Id.,  268;  Copper  Co.  v.  Copper  Mining 
Co.,  33  Id.,  92.  Where  the  price  in  such  cases  has  been  advanced,  this,  of 
course,  constitutes  an  element  of  damages. 

3  Tompkins  v.  Hass,  2  Pa.  St.,  74;  Pickering  v.  Bardweil,  21  Wis.,  562; 
Westfall  V.  Peacock,  63  Barb.  (N.  Y.),  209,  (1872);  Hughes'  Case,  4  Ct.  of 
CI.,  64. 


PEKSONAL  FKOPERTY.  279 

Failure  of  Purchaser  to  Comply— Damages. 

and  on  notice  to  the  vendee.  And  where  the  sale  is  executory 
onlv,  and  the  title  remains  in  the  vendor,  in  an  action  against 
the  vendee  for  his  breach  of  the  contract,  the  measure  of  dam- 
ajres  is  the  diflerence  between  the  real  value  and  the  contract 
price."  This  real  value,  however,  would  ordinarily  be  deter- 
mined by  a  sale  of  the  property  fairly  made,  and  especially 
if  the  vendee  had  notice  of  the  same  and  an  opportunity  to 
purchase. 

§299.  The  prevailing  rule  seems  to  be  that  when  the 
vendor  has  actually  taken  all  the  steps  necessary  to  vest  the 
title  of  goods  purchased  in  the  vendee,  he  may  sue  for  the 
value  of  the  goods,  and  the  rule  of  damages  would  be  the  con- 
tract price.  And  that  where  he  is  ready  and  willing  to  per- 
form, and  oifers  to  do  so,  but  the  vendee  refuses  to  receive  the 
goods,  the  vendor  has  his  right  of  action  on  the  contract  for 
his  damages,  even  though  the  title  to  the  goods  is  not  vested  in 
the  vendee.  But  the  damages  in  such  a  case  would  be  the 
actual  injury  sustained;  which,  as  we  have  stated,  would  ordi- 
narily be  the  difference  between  the  value  of  the  property,  at 
the  time  of  the  refusal,  and  the  price  agreed  upon." 

Thus,  in  a  recent  action  against  the  vendee  for  not  taking 
and  paying  for  property  according  to  contract,  the  court  said: 
"The  vendor  of  personal  property  in  a  suit  against  the  vendee 
for  not  taking  and  paying  for  the  property,  has  his  choice  of 
either  one  of  three  methods  of  indemnifying  himself: 

1.  He  may  store  or  retain  the  property  for  the  vendee  and 
sue  him  for  the  entire  purchase  price. 

2.  He  may  sell  the  property,  acting  for  this  purpose  as  the 
ao-ent  of  the  vendee,  and  recover  the  difference  between  the 
contract  price  and  the  price  obtained  on  such  re-sale. 

3.  He  may  keep  the   property  as  his  own,  and  recover 

4  Mallory  v.  Lord,  29  Barb.,  454. 

5  Ganson  v.  Madigan,  13  Wis.,  67.  On  the  subject  of  rescinding  contracts 
of  sale,  see  Story  on  Sales,  §  415,  etseq. 


280  THE  LAW  OF  DAMAGES. 

Failure  of  Purchaser  to  Comply— Damages. 

tlie  difference  between  the  market  price  at  time  and  place  of 
delivery,  and  the  contract  price."" 

But  the  first  proposition  above  stated  has  been  questioned 
in  a  recent  case  in  New  Hampshire,  And  it  is  there  claimed 
that  the  rule  in  such  cases  is  that  the  vendor  can  only 
recover  the  difference  between  the  contract  price  of  the  article 
sold,  and  its  market  value  at  the  time  when  it  should  have 
been  received  by  the  defendant.'  But  in  the  same  case 
the  doctrine  of  Dustan  v.  McAndrew^  su])ra^  seems  to  be 
indorsed  where  there  is  an  agreement  for  the  sale  of  property 
not  in  existence  at  the  time  of  the  contract,  but  is  to  be  manu- 
factured by  the  vendor  for  the  vendee  in  a  particular  way. 

In  such  a  case,  when  the  article  is  made  according  to  the 
contract  and  delivered  or  duly  tendered  to  the  vendee,  and  he 
declines  to  receive  or  pay  for  it,  it  was  held  that  the  vendor 
might  recov^er  as  damages  the  full  contract  price,  although  he 
retained  possession  of  the  manufactured  article.* 

§  300.  Where  the  plaintiff,  having  engaged  to  build  a 
sulky  for  the  defendantfor  $80,  manufactured  and  tendered  it 
to  the  defendant,  who  refused  to  receive  or  pay  for  the  same, 
and  the  plaintiff'  sued  for  the  contract  price,  the  court 
remarked  in  reference  to  the  measure  of  damages,  as  follows: 
"Where  there  has  been  a  valid  contract  of  sale,  the  vendor  is 
entitled  to  the  full  price,  whether  the  vendee  receive  the 
goods  or  not.  I  cannot  see  why  the  same  principle  is  not 
applicable  to  this  case.  Here  was  a  valid  contract  to  make 
and  deliver  a  sulky.  The  plaintiff  performed  the  contract  on 
his   part;  the   defendant   refused    the   sulky.      The   j^laintiff 

^  Dustan  v.  McAndrew,  44  N.  Y.,  72;  Ballentine  v.  Robinson,  46  Pa.  St., 
177;  3  Pars,  on  Con.,  208-210;  Seclg.  on  Dam.,  282;  Lewis  v.  Greicler,  49 
Barb..  606;  Pallen  v.  Le  Roy,  30  N.  Y.,  549.  See,  also,  Story  on  Sales,  §§ 
436,  437  and  citations. 

7  Gordon  v.  Norris,  49  N.  H.,  376.  But  see,  Atkinson  v.  Bell,  8  B.  &  G., 
277.    See,  also,  Story  on  Sales,  §  438,  et  seq;  Benj.  on  Sales,  §  794. 

^  Gordon  v.  Norris,  supra. 


PEKSONAL  PROPERTY.  281 

Failui'e  of  Purchaser  to  Comply— Damages. 

might,  upon  notice,  have  sold  the  sulkj  at  auction;  and  if  it 
sold  for  less  than  $S0,  the  defendant  must  have  paid  the  bal- 
ance. The  reason  given  for  this  rule  by  Kent,  C.  J.,  is,  that 
it  would  be  unreasonable  to  oblige  him  to  let  the  article 
perish  on  his  hands,  and  run  the  risk  of  the  insolvency  of  the 
buyer.  But  if,  after  tender  or  notice,  whichever  may  be 
necessary,  the  vendor  chooses  to  run  that  risk  and  permit  the 
article  to  perish,  or  as  in  this  case,  if  he  deposits  it  with  a 
third  person  for  the  use  of  the  veadee,  he  certainly  must  have 
a  right  to  do  so,  and  prosecute  for  the  price.  Suppose  a 
tailor  makes  a  garment,  or  a  shoemaker  a  pair  of  shoes,  to 
order,  and  performs  his  part  of  the  contract,  is  he  not  entitled 
to  the  price  of  the  article  furnished?  I  think  he  is,  and  that 
the  plaintiff  in  this  case  was  entitled  to  his  verdict."* 

And  in  Connecticut,  in  an  action  to  recover  the  price  of 
l^roperty  sold,  where  it  was  an  ordinary  sale  of  property  in 
esse,  it  was  held,  that  the  measure  of  damages  was  the  actual 
amount  of  injury  sustained  by  the  plaintiff  in  consequence  of 
the  non-acceptance  and  non-payment;  and  that  this  was  the 
difference  between  the  price  agreed  to  be  paid  and  its  actual 
value,  where  the  price  agreed  upon  exceeds  this  value.  And 
that  if  it  is  actually  worth  the  price  agreed  to  be  paid,  the 
damages  should  be  only  nominal.  But  where  the  property  is 
worthless  in  the  hands  of  the  vendor,  the  price  agreed  to  be 
paid  should  be  allowed  as  damages.'"  In  order  to  give  the 
vendor  more  complete  indemnity  in  such  cases,  he  should 
receive  the  difference  between  the  price  agreed  upon,  and  the 
value  of  the  same  on  the  day  on  which  it  was  tendered  and 
the  vendee  was  bound  to  receive  and  pay  for  it,  and  interest, 

9  Bement  v.  Smith,  15  Wend.,  493.  See,  also,  Dustan  v.  McAndrew,  10 
Bos.  (N.  y.),  130;  44  N.  Y.,  72. 

"  Allen  V.  Jarvis,  20  Conn.,  88;  Williams  v.  Jones,  1  Bush.  (Ky.),  621. 
See,  also,  Rhodes  v.  Thwartes,  6  B.  &  C,  392;  EUiott  v.  Pybus,  10  Bing., 
572;  Messer  v.  Bingham,  22  N.  H.,  117;  Pennyman  v.  Hartshorn,  13  Mass., 
87;  Maclean  v.  Dunn,  4  Bing.,  722;  Story  on  Sales,  §  438. 


282  THE  LAW  OF  DAMAGES. 

Failm-e  of  Purchaser  to  Comply— Damages. 

less  the  amount  of  any  payments  made  tliereori."  And 
where  a  quantity  of  straw  was  sold,  a  portion  of  which  only 
was  taken  away  by  the  pureliaser,  and  he  subsequently  refused 
to  take  the  remainder,  which  having  become  damaged  the 
next  spring,  the  vendor  threw  into  a  barnyard  to  his  cattle; 
it  was  held  that  the  measure  of  damages  against  the  vendee 
for  refusing  to  comply  with  his  contract,  was  the  contract 
price  of  the  straw,  less  the  value  of  the  remainder  of  the  same 
to  the  vendor  for  the  use  to  which  it  was  applied.'^ 

But,  where  the  plaintiff  agreed  to  supply  to  the  defendants 
3,900  tons  of  cast-iron  chairs,  in  certain  quantities  per  month, 
and  payments  were  to  be  made  by  the  defendants  therefor 
within  one  month  after  each  monthly  delivery,  and  the  defend- 
ants received  a  portion  of  the  chairs  but  refused  to  accept  or 
receive  the  balance  of  the  same,  and  discharged  the  plaintiff 
from  the  further  performance  of  the  contract;  and  it  further 
appeared  that  the  plaintiff  had  contracted  with  other  parties 
for  the  supply  of  some  of  the  chairs  at  a  price  rather  above 
the  average  price  contracted  to  be  paid  to  him  by  the  defend- 
ants, and  that  he  was  obliged  to  pay  500^.  to  get  released 
from  his  sub-contract;  and  it  also  appeared  that  the  plaintiff  had 
made  arrangements  with  iron  founders  for  the  supply  of  iron, 
and  had  built  a  foundry  for  the  manufacture  of  the  chairs ;  it  was 
held,  that  these  losses  and  expenses  were  proper  elements  of 
damages,  and  that  they  should  be  taken  into  consideration 
by  the  jury  in  assessing  tliem.'^ 

"  Danav.  Fielder,  12  N.  Y.  (2  Kern.),  40;  Haskell  v.  McHenry,  4  Cal.,411; 
Whetmore  v.  Coats,  14  Mo.,  9. 

"  Chamberlain  v.  Farr,  23  Vt.,  265.  See,  also,  Graham  v.  Jackson,  14 
East.,  498;  Orr  v.  Bigelow,  14  N.  Y.,  556;  Ballentine  v.  Robinson,  46 
Penn.,  177.  See,  also,  rule  in  various  cases,  Munson  v.  Price,  4  East.,  147; 
Button  V.  Solomonson,  3  Bos.  &  Pull.,  582;  Hoskins  v.  Duperoy,  9  East.,  498; 
Hutchinson  v.  Reid,  3  Camp.,  329;  Loring  v.  Gm-ney,  5  Pick.,  16. 

'3  Cort  V.  Ambergate  R.  Co.,  17,  Q.  B.,  127;  15  Jur.,  877;  20  L.  J.  Q.  B., 
460. 


PEESOISTAL  PKOPEETT.  283 

■Warranty  of  Title -Personal  Property— Damages  on  Failure  of  Title. 


§  301.     Warranty  of  Title— Personal  Property.— 

Chancellor  Kent,  on  the  subject  of  warranty  of  title,  observes: 
"  In  every  sale  of  a  chattel,  if  the  possession  at  the  time  be  in 
another,  and  there  be  no  covenant  or  warranty  of  title,  the 
rule  of  caveat  emptor  applies,  and  the  party  buys  at  his  peril. 
But  if  the  seller  has  possession  of  the  article,  and  he  sells  it  as 
his  own  and  not  as  agent  of  another,  and  for  a  fair  price,  he 
is  understood  to  warrant  the  title.  A  fair  price  implies  a 
warranty  of  title,  and  the  purchaser  may  have  satisfaction 
from  the  seller,  if  he  sells  the  goods  as  his  own  and  the  title 
proves  deficient."  " 

Mr.  Sedgwick  affirms,  that  the  old  English  authorities  sus- 
tain the  doctrine  that  there  is,  in  a  contract  of  sale,  no  more 
implied  warranty  of  title  than  of  quality.'^  But  he  admits 
that,  "  according  to  the  Koman  law,  and  in  France  and  in 
Scotland,  and  generally  in  the  United  States,  there  is  always 
an  implied  contract  that  the  vendor  has  a  right  to  dispose  of 
the  subject  which  he  sells." '° 

§  302.    Measure  of  Damages  on  Failure  of  Title.— 

It  would  appear  reasonable  that  the  measure  of  damages  on 
the  failure  of  title,  where  the  price  has  been  paid,  should  be 
at  least  the  value  of  the  article.  But  even  where  this  rule  is 
recognized,  in  case  of  a  failure  to  deliver  property  sold,  the 
measure  of  damages  on  the  failure  of  title  is  not  always  its 
value.  On  the  contrary,  the  general  rule  of  damages  on  the 
failure  of  title,  is  the  price  paid  and  interest,  and  the  costs 
recovered  against  the  purchaser  in  the  suit  by  the  owner  to 
recover  the  same,  where  the  vendor  has  due  notice  of  the 
suit." 

'4  2  Kent's  Com.,  478;  Storm  v.  Smith,  43  Miss.,  497. 

»5  And  in  North  Carolina,  where  there  was  a  written  bill  of  sale  which 
contamed  no  warranty  of  title,  it  was  held  that  there  was  no  implied  war- 
ranty of  title,  and  that  it  could  not  be  proved  under  such  circumstances; 
Sparks  v.  Maseck,  65  N.  C,  440. 

'fi  Sedg.  on  Dam.,  393,  et  seq.;  Gross  v.  Kierski,  41  Cal.,  111. 

'7  Armstrong  v.  Percy,  5  Wend.,  535;  Case  v.  Hall,  24  Id.,  102;  Bent  v. 
Dewey,  31  Barb.,  540;  Shattuckv.  Green,  104  Mass.,  42;  Rowland  v.  Shelton, 


284  THE  LAW  OF  DAMAGES. 


Measure  of  Damages  on  Failure  of  Title. 


The  weight  of  authority  would  authorize  the  vendee  to 
make  any  defense  in  good  faith  to  a  claim  of  title,  and  if  he 
fails  in  such  defense  and  loses  the  property,  and  is  required 
to  pay  costs  therein,  he  may  recover  such  costs  and  expenses  of 
the  suit,  together  with  the  price  paid  for  the  property,  or  its 
value  and  interest,  as  the  different  circumstances  of  the  case 
and  rules  of  law  may  authorize,  and  especially  where  notice 
of  such  suit  is  given  to  the  vendor." 

Thus,  in  New  York,  where  the  vendee  was  sued  in  trover 
for  the  horse  he  had  purchased  of  the  defendant,  and  he  had 
given  notice  of  the  suit  to  his  vendor,  and  a  judgment  was 
obtained  against  him  for  the  value  of  the  horse  and  costs,  it 
was  held  in  an  action  by  the  vendee  against  the  vendor,  that 
the  judgment  in  the  trover  suit  was  strong,  but  not  conclusive, 
evidence  of  the  title  of  the  plaintiff  in  the  suit,  and  if  not 
rebutted  the  plaintiff  was  entitled  to  recover,  as  damages,  the 
amount  recovered  against  him  in  the  trover  suit,  and  the 

costs." 

25  Ala.  (N.  S.),  217.  This  seems,  also,  to  accord  with  the  Civil  law,  Domat., 
Book  1,  Title  2,  Art.. 3;  and  with  the  provisions  of  the  French  Code,  Civil 
Code,  Chap.  4,  Sec.  1,  Art.  1603.  In  England,  Lord  Campbell,  C.  J.,  said, 
that  "  on  that  point  the  law  is  not  in  a  satisfactory  state."  Sims  v.  Marryat, 
17  Q.  B.,  290.  "Every  sale  of  chattels  contains  an  implied  warranty  that 
the  title  of  them  is  in  the  vendor."    Perley  v.  Balch,  supra. 

18  This  doctrine  was  apphed  where  the  signatures  of  a  transferred  note 
were  forged.  Coolidge  v.  Bringham,  5  Met.  (Mass.),  68;  Rowland  v.  Shel- 
ton,  25  Ala.  (N.  S.),  217;  Johnson  v.  Blank,  etc.,  34  Mo.,  255;  SaUe  v.  Light, 
4  Ala.  (N.  S.),  700.    See,  also,  Bardwell  v.  ColHe,  45  N.  Y.,  494. 

laBlasdale  v.  Babcock,  1  Johns.,  517.  See,  also,  Armstrong  v.  Percy,  5 
Wend.,  535.  And  in  case  of  a  breach  of  the  warranty  of  the  genuuaeness 
of  the  signatures  to  a  note  or  bill  of  exchange,  which  we  have  heretofore 
considered,  the  assignee  or  indorsee  is  entitled  to  recover  the  difference 
between  the  amount  of  the  note  or  bill  and  its  actual  value.  Coolidge  v. 
Bringham,  1  Met.  (Mass.),  547.  And  a  warranty  of  title  to  a  chattel,  has 
reference  to  the  status  of  the  chattel  at  the  time  of  the  warranty,  and  is  not 
intended  to  protect  the  title  against  future  events.  Thus,  where  slaves 
were  sold,  with  warranty  of  title,  their  subsequent  emancipation  by  the  gov- 
ernment of  the  United  States,  constituted  no  breach.  See,  Blewitt  v.  Evans, 
42  Miss.,  804  (1869);  Whitworth  v.  Carter,  43  Id.,  61  (1870).  But,  compare 
Algier  v.  Black,  32  Tex.,  168;  Ketchum  v.  Dew,  7  Caldw.  (Tenn.),  532  (1870). 


CONTRACTS  FOE  SERVICES.  285 


Breach  by  the  Employer. 


CHAPTER  XIII. 


CONTRACTS    FOR    SERVICES— SPECIFIC   ACTS- 
MATERIAL. 

Section  323.  Breach  by  the  Employer. 

324.  Breach  by  the  Employe. 

326.  Part  Performance  by  the  Party  Hired. 

327.  The  Doctrine  of  Entire  Contract  Relaxed. 

329.  American  Cases  where  the  Stern  Rule  was  Followed. 

330.  Middle  Ground. 

331.  The  Liberal  Rule  in  such  Cases— Britton  v.  Turner. 

332.  Tendency  of  the   Decisions  in  Harmony   with  Britton  v. 

Turner. 

334.  States  in  which  the  Doctrine  has  been  Recognized. 

335.  Construction  of  the  Contract. 

336.  Application  of  the  Rule. 

337.  Damages  where  the  Work  is  Accepted. 

338.  Method  of  Computing  Damages  in  such  Cases. 

339.  Refusal  of  the  Employer  to  Accept  of  Services. 

340.  Duty  of  the  Discharged  Party  to  seek  other  Employment. 

341.  Under  the  Code  of  Louisiana. 

342.  Duty  of  a  Party  to  use  Reasonable  Means  to  Prevent  Loss, 

343.  Deviation  by  Consent. 

344.  Conclusions. 

§  323 .  Breach  by  the  Employer.— Where  work  is  done 
under  a  special  contract,  fixing  the  price  to  be  paid  therefor, 
the  contract  will  ordinarily  control  the  price,  whether  it  be 


286  THE  LAW  OF  DAMAGES. 

Breach  of  Contract  by  Employe. 

reasonable  or  not;'  and  in  an  action  therefor,  the  measure  of 
damages  would  be  the  amount  stipulated  to  be  paid,  or  the 
unpaid  balance  due  by  the  terms  of  the  contract.  But  if 
there  is  no  agreement  as  to  the  price  of  the  services,  then  the 
employe  my  recover  so  much  as  the  services  are  reasonably 
worth. '^ 

§  324.    Breach  of  Contract  by  the  Employe.— It  is  a 

general  rule  tliat  the  employer,  on  the  breach,  by  the  employe, 
of  an  executory  contract  to  do  a  specific  thing,  is  entitled  to 
indemnity  for  the  loss  which  has  been  occasioned  by  the  non- 
performance of  the  obligation,  and  for  tlie  gain  of  which  it 
has  deprived  him.  But  the  gain  referred  to  is  only  that 
which  would  have  been  the  direct  and  immediate  fruit  of  the 
contract.  Thus,  the  measure  of  damages  for  the  breach  of  a  con- 
tract to  saw  all  the  timber  on  tlie  plaintiffs  land,  is  the  differ- 
ence between  the  value  of  the  timber  left  unsawed,  and  tlie 
profits  which  the  plaintifif  would  liave  received  if  the  timber 
so  left  had  been  sawed.' 

So,  where  the  defendant  contracted  to  build  the  sea  wall  of 
a  wharf,  and  failed  so  to  do,  he  was  held  liable  for  the  loss  of 
the  rent  of  the  wharf  during  the  delay  in  its  construction." 

And  the  measure  of  damages,  for  failing  to  put  into  a 
steamboat  certain  machinery  within  the  time  and  of  the 
quality  stipulated,  was  held  to  be  the  ordinary  hire  of  such  a 
boat  for  the  period  the  contractor  was  in  default;  and  to  which 
the  necessary  cost  of  repairs  of  the  defective  machinery  put 
in,  and  the  hire  or  value   of  the  use  of  the  boat  during   said 

'  Brigham  v.  Hawley,  17  111.,  38;  McClelland  v.  Snider,  18  III,  58.  If  the 
work  is  abandoned  for  justifiable  reasons,  the  stipulations  of  the  contract 
usually  control  the  price  of  the  work  done.  Follett  v.  Hunt,  21  Id.,  655; 
Holmes  v.  Stummel,  17  Id.,  455;  Street  v.  Swain,  21  Ind.,  203. 

»  Frazer  v.  Gregg,  20  111.,  299.  See,  also,  Graham  v.  Graham,  34  Pa.  St., 
475;  Western  v.  Sharp,  14  B.  Mon.  (Ky.),  177. 

3  Fail  V.  McRee,  36  Ala.,  61. 

*  Wiley  V.  Fredericks,  10  Gray  (Mass.),  357. 


COKTKACTS  FOR  SERYICES.  287 

Breach  of  Contract  by  Employe. 

repairs,  should  be  added.'  And  where  there  was  a  breach  of 
conn-act  to  carry  coal,  the  additional  expense  of  procuring 
other  carriao-e,  and  if  that  could  not  be  obtained,  the  conse- 
quent  loss  in  business  by  a  deficient  supply  and  increased 
cost  and  expenses  incurred  on  account  of  the  expected  receipt 
under  tlie  contract  to  carry,  were  held,  to  constitute  proper  el- 
ements of  damages."  And  especially  would  this  be  the  case, 
where  the  parties  at  the  time  of  the  contract  knew,  or  had 
reason  to  expect,  that  such  consequences  would  result  from  the 
breach. 

Where  the  defendant  contracted  to  furnish  a  shaft  and  other 
machinery  for  a  mill,  and  they  were  not  furnished  according 
to  contract,  the  plaintiff  was  allowed  as  damages,  the  differ- 
ence between  the  article  furnished  and  such  as  the  contract 
required,  together  with  the  loss  of  the  use  of  the  mill  during 
the  period  of  time  necessary  to  make  the  change  to  conform 
to  what  it  should  have  been  under  the  contract.'  And  it  has 
been  held  that  a  contract  for  drawing  logs  from  one  point  to 
another,  which  did  not  specify  the  time  at  which  they  should 
be  delivered,  sliould  be  construed  so  as  to  require  them  to  be 
delivered  within  a  reasonable  time,  and  that  the  measure  of 
damages  for  an  unreasonable  delay  in  delivering  them,  was 
the  difference  between  the  market  value  of  the  logs  at  the 
tiiiie  when  they  were  delivered,  and  at  the  time  they  should 
have  been, delivered,  provided  they  were  more  valuable  at  the 
latter  period.* 

s  Brown  v.  Foster,  51  Pa.,  St.,  165. 

^  Collins  V.  Baumgartner,  52  Pa.  St.,  461.  See  the  doctrine  of  Hadley  v. 
Baxendale,  9  Exch.,  341;  ante,  §  252. 

^  Strawn  v.  CoggsweU,  28  111.,  457;  Davis  v.  Talcott,  14  Barb.,  (N.  Y.), 
611. 

8  Whalon  v.  Aldrich,  8  Minn.,  346.  See,  also,  New  York,  etc.,  R.  Co.,  v. 
Story,  6  Barb.,  (N.Y.),  419. 

In  a  recent  case  in  Kansas,  where  the  City  of  Fort  Scott  subscribed  $75,000 
in  stock  to  the  Missouri,  Kansas  &  Texas  Railroad  Company,  and  issued  bonds 
to  the  amount  of  $75,000  in  payment  therefor,  and  also  issued  bonds  to  the 


288  THE  LAW  OF  DAMAGES. 

Part  Performance  on  part  of  Party  Hired. 

§  326 .  Part  Performance  on  the  Part  of  Party  Hired. 

— The  question  frequently  arises  as  to  the  measure  of  damages 
in  a  suit  for  services,  and  where  there  is  only  a  partial  per- 
formance of  the  services  nnder  the  contract.  It  may  be 
observed,  that  where  a  party  engages  to  render  personal  ser- 
vices and  is  prevented  from  completing  the  contract  by  the 
act  of  God,  as  by  death  after  a  part  performance,  the  law  excuses 
the  non-performance,  and  allows  his  representatives  to  recover 
fro  rata  for  the  time  employed,  or  for  the  amount  of  service 
done,  according  to  the  price  stipulated  to  be  paid,  or,  if  no 
price  is  stipulated  for,  then  on  a  quantum  meruit;  with  a 
deduction  of  the  damages  sustained  by  his  employer  in  con- 
sequence of  his  not  being  able  to  complete  the  full  term  of 
service;  for  in  su(;h  cases,  or  in  case  of  personal  disability  from 
sickness,  disease  or  otherwise,  arising  from  no  fault  of  the 
employe,  but  from  natural  or  unavoidable  causes,  or,  as  it  is 

said  company  for  $25,000  to  purchase  the  right  of  way  of  said  company 
through  the  city,  and  for  machine  shops,  engine  houses,  etc.,  and  tlie  sub- 
scription was  made  upon  the  condition  that  the  company  should  construct 
within  six  months,  araih'oad  from  Sedaha,  Missouri,  through  Fort  Scott,  to 
connect  with  a  line  running  from  Junction  City  in  a  southeasterly  direction; 
and  construct  no  other  line  of  road  south  of  Fort  Scott  iu  the  same  direction, 
and  that  it  should  make  Fort  Scott  the  end  of  a  division,  and  erect  engine 
houses  and  machine  shops  at  or  near  said  place,  before  doing  so  at  any  other 
place  southwest  of  SedaUa,  on  the  through  line  of  the  road;  and  the  com- 
pany complied  with  the  contract,  except  that  it  did  not  make  Fort  Scott  the 
end  of  a  division,  and  did  not  erect  the  engine  house  and  maohine  shops 
there,  but  erected  them  at  Parsons,  and  said  city  brought  an  action  against 
said  company  for  damages  for  its  failure  to  comply  with  its  contract;  it  was 
held,  that  testimony  tending  to  show  a  decline  in  the  population  of  Fort 
Scott  and  a  depreciation  iu  the  value  of  real  estate  through  the  city  during 
the  period  subsequently  to  the  construction  of  the  road  and  prior  to  the 
building  of  the  engine  houses  at  Parsons  was  improper,  as  damages  based 
on  such  testimony  would  be  speculative,  and  not  the  certain,  direct  and  im- 
mediate fruits  of  a  breach  of  the  contract,  but  remote  and  uncertain. 

And  it  was  held,  that  in  such  a  case  the  value  of  the  improvements  if 
made,  for  the  purposes  of  taxation,  would  be  the  measure  of  damages. 

M.,  K.  &  T.  R.  Co.,  V.  The  City  of  Fort  Scott,  West.  Jur.,  Vol.  10, 
p.  184,  et.  seq. 


CONTRACTS  FOR  SERVICES.  289 

The  Doctrine  of  Entire  Contract  Relaxed. 

called  the  act  of  God,  no  one  should  be  injured;  actus  Dei 
nemini  facit  injuriam^" 

Thus,  where  a  party  was  employed  to  superintend  the  con- 
struction of  a  work,  under  a  contract,  by  which  he  was  to  re- 
ceive as  compensation  a  third  of  the  profits  of  the  undertak- 
ing, besides  a  salary,  and  after  the  greater  part  of  the  work 
was  done  he  died.  The  work  was  afterwards  completed  at  a 
great  profit.  In  action  by  the  executors  of  the  deceased  to 
recover  the  amount  due  under  the  contract,  it  was  held  that 
they  should  recover ^y^  rata^  under  the  contract,  and  that  the 
profits  were  to  be  measured  by  taking  one-third  of  such  a 
proportion  of  the  whole  profits,  as  the  cost  of  the  work  done 
at  the  time  of  the  testator's  death  bore  to  the  whole  under- 
taking." 

But  when  no  such  excuse  existed,  and  there  was  no  waiver  of 
full  performance,  the  contract  was  formerly  considered  as  an 
entire  one,  and  required  a  complete  performance  in  order  to 
entitle  a  party  to  recover. 

§  327.    The  Doctrine  of  Entire  Contract  Relaxed.— 

But  this  stern  rule,  has  been  relaxed  in  many  of  the  states; 
and  the  doctrine  now  generally  recognized  in  case  of  part  per- 
formance of  a  contract  for  personal  services  is,  that  if  the 
employer  accepts  of  the  benefit  of  what  has  been  done,  wheth- 
er voluntarily  or  from  the  necessity  of  the  case,  the  employe 
may  recover  according  to  the  contract  price,  for  what  has  been 
done;  or,  where  he  is  to  receive  a  fixed  sum  for  the  whole  work, 
then,  in  the  proportion  which   the   work  done   bears   to   the 

'0  Farrow  v.  Wilson,  4  L.  R.  C.  P.,  744;  Boast  v.  Frith,  Id.,  1;  Wolfe  v. 
Howes,  20  N.  Y.,  197;  Jones  v.  Judd,  4  N.  Y.,  412;  Doster  v.  Brown,  25 
Geo.,  24;  Fuller  v.  Brown,  11  Met.  (Mass.),  440;  Seaver  v.  Morse,  20  Vt., 
620;  Hubbard  v.  Belden,  27  Id.,  645;  Cole  v.  Smith,  4  Ind.,  79;  Allen  v. 
McKibben,  5  Mich.,  449,  whereit  is  affirmed  that  the  employe  cannot  be 
permitted  to  gain  by  his  sickness,  nor  the  employer  to  lose  by  it.  See,  also, 
the  same  doctrine  in  Patrick  v.  Putnam,  27  Vt.,  759;  Clark  v.  Gilbert,  26 
N.  Y.,  279. 

"  Clark  V.  Gilbert,  supra, 
19 


290  THE  LAW  OF  DAMAGES. 

American  Cases  in  wliicli  the  Sterner  Kule  was  Followed. 

whole  work;  or,  where  there  is  no  price  fixed,  then  upon  a 
quantum  meruit,  from  which,  however,  there  must  be  de- 
ducted whatever  damages  may  have  resulted  to  the  employ- 
er from  the  failure  to  fully  perform  the  contract  by  the 
employe. 

These  propositions  will  be  best  illustrated  by  the  following 
decisions.  And  first,  we  will  consider  those  sustaining  the 
former  rule,'° 

§  329.  American  Cases  in  which  the  Sterner  Rule 
was  Followed.  —  Among  the  early  American  cases  in 
which  this  rule  was  distinctly  declared  was,  in  New  York,  in 
McMillan  v.  Vanderlip.  The  plaintiff  had  agreed  to  work 
for  the  defendant  ten  and  a-half  months,  and  spin  yarn  at  3 
cents  per  run,  but  left  the  service  of  the  defendant  before  the 
expiration  of  the  time,  and  brought  an  action  against  him  for 
spinning  845  runs,  at  three  cents  per  run.  It  was  held  that 
the  contract  was  entire  and  must  be  fully  performed,  as  a  con- 
dition precedent,  before  a  recovery  could  be  had.'^ 

'2  For  English  authorities,  see,  Ellis  v.  Hamlin.  3  Taunt.,  52;  Sinclair  v. 
Bowles,  9  B.  &  C,  93;  Spain  v.  Arnott,  2  Stark,  256;  Waddington  v.  Oliver, 
5  B.  &  P.,  61;  Walker  v.  Dixon,  2  Stark,  281;  Kingdom  v.  Cox.  5  M.  G.  &  S. 
(C.  B.),  522;  Mayne  on  Dam.,  106,  et  seq.  See,  also.  Cutler,  Adm'r.  v.  Pow- 
ell, 6  T.  R.  (Dum.  &  East.),  320,  where  a  master  of  a  vessel  had  given  the 
mate  a  note  promising  to  pay  him  30  guineas,  "provided  he  proceeded,  con- 
tinued, and  did  his  duty,  as  mate,"  etc.,  on  a  certain  voyage  to  Liverpool; 
and  the  mate  died  during  the  voyage.  It  was  held,  that  nothing  could  be 
recovered  either  on  the  contract  or  on  a  quantum  meruit. 

'3 12  John.,  165.  See,  also,  Thorpe  v.  White,  13  John.,  53;  Jennings  v. 
Camp,  13  John.,  94;  Clark  v.  Smith,  14  Johns.,  326,  which  was  an  agreement 
to  take  charge  of  a  certain  brick  yard,  and  make  a  certain  quantity  of  bricks 
for  a  specified  sum,  and  where  the  same  principle  was  recognized. 

And  where  the  plaintiff  agreed  to  work  for  the  defendant  eight  months 
for  $104,  or  $13  per  month,  and  left  before  the  time  expu-ed;  Held,  that  he 
could  not  recover  in  an  action  for  work  and  labor.  Reab  v.  Moore,  19  John., 
337.  See,  also,  Henson  v.  Hampton,  32  Mo.,  408;  Posey  v.  Garth,  7  Mo.,  94; 
Dickson  v.  Caldwell,  17  Mo.,  575;  Hutcliinson  v.  Wetmore,  2  Cal.,  310; 
Schnerr  v.  Lemp,  19  Mo.,  40.  But  the  action  in  some  of  these  cases  was  on 
the  contract,  and  the  decisions  rest  on  technical  grounds. 


CONTRACTS  FOR  SERVICES.  291 

American  Cases  in  which  the  Sterner  Rule  was  Followed. 

And  in  Massachusetts  where  the  plaintiff  had  agreed  with 
the  defendant  to  erect  a  barn  and  finish  it,  for  a  specified  sum 
and  bj  a  certain  time,  and  abandoned  tlie  work  before  it  was 
finished;  it  was  held,  that  the  plaintiff  could  neither  recover 
on  the  contract,  nor  on  a  quantum  meruit}^ 

But  where  the  plaintiff  had  contracted  to  build  a  house  for 
the  defendant,  and  on  his  land  in  a  certain  specified  manner, 
and  within  a  certain  time;  and  the  house  was  bnilt  of  the 
dimensions  specified  and  within  the  time  specified,  but  in 
workmanship  and  materials  inferior  to  that  called  for  by  the 
contract;  and  it  appeared  that  the  defendant  was  present 
almost  every  day  during  the  ^^rogress  of  the  work  giving  direc- 
tions, and  directing  variations  from  the  contract,  although  he 
at  times  objected  to  parts  of  the  materials  and  work;  and  the 
defendant  after  the  work  was  done  refused  to  accept  it,  but 
the  plaintiff  had  not  before  been  informed  of  his  intention  to 
do  so;  it  was  held,  that  the  plaintiff  might  recover  on  a  quan- 
tum meruit^  for  his  labor,  and  quantum  valehat  for  his  mate- 
rials; but,  that  in  such  cases  one  of  three  things  must  be  shown 
in  order  to  entitle  the  plaintiff  to  recover;  either  a  substan- 
tial execution  of  the  contract,  or  an  assent  to  variations;  or,  an 
express  or  implied  acceptance  of  the  work.'^  In  this  case 
there  was  sufficient  evidence  of  an  acceptance  of  the  work  as 
it  progressed  to  warrant  a  recovery. 

But  in  INTew  York,  in  a  case  where  the  plaintiff  erected  a 
building  on  the  defendant's  land,  it  was  held,  that  such  an 
enforced  and  necessary  possession  did  not,  of  itself,  constitute 
an  acceptance  of  the  work  or  a  waiver  of  the  conditions  of  the 
contract;  and,  that  where  there  was  under  such  circumstances 
a  breach  of  the  condition  on  the  part  of  the  plaintiff,  the 

'4  Faxon  v.  Mansfield,  2  Mass.,  147;  Stark  v.  Parker,  2  Pick.,  267;  Moses 
V.  Stevens,  2  Pick.,  232. 

's  Hayward  v.  Leonard,  7  Pick.,  181.  See,  also.  Bee  Printing  Co.  v.  Hick- 
born,  4  Allen  (Mass.),  63.  The  rioflit  of  recoveiy  in  these  cases  was  evidently 
placed  on  the  ground  of  acceptance  of  the  work. 


292  THE  LAW  OF  DAMAGES. 


Middle  Ground. 


defendant  was  not  obliged  to  pay  for  it  nor  was  lie  obliged 
to  tear  down  the  building.'" 

§  330.  Middle  Ground.— In  Yermont  a  sort  of  middle 
ground  seems  to  be  maintained,  and  the  motives  of  the  party 
in  fault,  and  the  benefits  conferred  have,  in  some  cases,  been 
considered  proper  matters  for  consideration. 

In  Kelly  v.  The  Town  of  Bradford^  the  Supreme  Court  of 
that  state,  (per  Addis,  J.,)  say:  "The  doctrine  is  firmly  estab- 
lished in  this  state  that,  where  a  contract  has  been  substantially, 
though  not  strictly  performed — where  the  party,  failing  to  per- 
form according  to  the  terms  of  the  contract,  has  not  been 
guilty  of  a  voluntary  abandonment  or  willful  departure  from 
the  contract,  has  acted  in  good  faith,  intending  to  perform  it 
according  to  its  stipulations,  but  has  failed  in  strict  compli- 
ance with  its  provisions,  and  where  from  the  nature  of  the 
contract  and  of  the  labor  performed,  tlie  parties  cannot  rescind 
and  stand  in  statu  quo,  but  one  of  them  must  derive  some 
benefit  from  the  labor  or  money  of  the  other;  in  such  cases, 
the  party  failing  to  perform  his  contract  strictly,  may  recover 
of  the  other,  as  upon  a  quantum  meruit,  for  such  a  sum  only 
as  the  contract,  as  performed,  has  been  of  real  and  actual  bene- 
fit to  the  other  party,  estimating  such  benefit  by  reference  to 
the  contract  price  of  the  whole  work.  *  *  '" 

The  party  failing  to  perform,  must  deduct  from  the  contract 
price : 

1.  Such  sum  as  will  enable  the  other  party  to  get  the  con- 
tract completed  according  to  its  terms;  or,  where  that  is  impos- 
sible or  unreasonable,  such  a  sum  as  will  fully  compensate 
him  for  the  imperfection  in  the  work  and  insufficiency  in  the 
materials  so  that  he  shall,  in  this  respect,  be  made  as  good 
pecuniarily  as  if  the  contract  had  been  strictly  performed. 

'S  Smith  V.  Brady,  17  N.  Y.,  173.  See  also,  Biyant  v.  Stillwell,  24  Penn., 
314;  Pullman  v.  Coming,  9  N.  Y.,  93,  where  it  was  held,  that  to  maintain  a 
recovery  without  a  full  performance,  there  must  be  a  waiver  or  an  acceptance 
of  the  work  done,  or  an  equivalent  of  this. 


CONTRACTS  FOR  SEEYICES.  293 

Liberal  Kule  in  such  Cases— Britton  v.  Turner. 


2.  Whatever  additional  damages  liis  breach  of  contract 
may  have  occasioned  to  the  other."" 

So,  in  that  state,  the  terms  of  the  contract  to  be  performed 
by  the  employe  are  not  usually  construed  as  conditions  pre- 
cedent, and  while  the  courts  do  not  change  the  original  contract, 
or  make  one  for  the  parties,  they  sometimes  impl}^  a  new  one 
from  the  circumstances  and  give  an  adequate  remedy." 

"Where  an  infant  contracts  for  a  definite  period  of  service 
and  leaves  before  the  time  expires,  the  general  rule  is,  that  he 
may  recover  so  much  as  the  services  are  worth,  taking  into 
consideration  the  injury  to  the  employer,  from  the  breach.'' 
And  if  he  is  discharged,  even  for  a  sufficient  cause,  he  may 
recover  on  a  quantum  meruit.^" 

§  331.  The  Liberal  Rule  in  such  Cases— Britton  v. 
Turner. — One  of  the  earliest,  clear  and  distinct  recoo-nitions 
of  the  more  liberal  rule,  to  which  we  have  referred,  was  in 
the  case  of  Britton  v.  Turner,  in  the  Supreme  Court  of  New 
Hampshire.  The  action  was  for  work  and  labor  performed. 
The  plaintiff  had  contracted  to  work  for  one  year  for  the  sum 
of  one  hundred  dollars,  and  left  after  remaining  about  nine 
months,  without  the  consent  of  the  defendant  and  without 
any  good  cause.  The  court  below  held,  on  these  facts,  that 
the  plaintiff  was  entitled  to  recover  on  a  quantum  meruit 
count,  as  much  as  the  labor  performed  was  reasonably  worth. 
The  Supreme  Court  sustained  this  view  of  the  law.  Parker, 
C.  J.,  in  delivering  the  opinion  of  the  court,  referred  to  sev- 
eral cases  where  this  rule  had  been  held  in  cases  of  contracts 
to  build;  and  said:  "The  cases  of  building,  etc.,  are  not  to  be 

'7  33Vt.,  35.  ~ 

'8  Dyer  v.  Jones,  8  Vt.,  205;  GiUman  v.  HaU,  11  Vt.,  510;  Bra^kett  v.  Morse, 
23  Vt.,  554;  Morrison  v.  Cummiiigs,  26  Vt.,  486;  Hubbard  v.  Belden,  27  Vt., 
645;  Bakery.  The  Troy  &  Rutland  R.  Co.,  27  Vt.,  645;  Swift  v.  Harriman, 
30  Vt.,  607;  2  Pars,  on  Con.,  35;  Patnote  v.  Sanders,  41  Vt..  66. 

'9  Hoxie  V.  Lincoln,  25  Vt.,  206;  Thomas  v.  Dike,  11  Id.,  273.  See,  also, 
Dorchester  v.  Contmental  Mills,  50  Me.,  217. 

=°  Jones  V.  Jones,  2  Swan.  (Tean.),  605. 


294  THE  LAW  OF  DAMAGES. 


Liberal  Rule  in  such  Cases— Britton  v.  Turner. 


distinguislied  in  principle  from  the  present,  unless  it  be  in 
the  circumstance  that  where  the  party  has  contracted  to  fur- 
nish materials,  and  do  certain  labor,  as  to  build  a  house  in  a 
specified  manner,  if  it  is  not  done  according  to  the  contract, 
the  party  for  whom  it  is  built,  may  refuse  to  receive  it,  elect 
to  take  no  benefit  from  what  has  been  performed  and,  there- 
fore, if  he  does  receive,  he  shall  be  bound  to  pay  the  value; 
whereas,  in  a  contract  for  labor  merely  from  day  to  day,  the 
party  is  continually  receiving  the  benefit  of  the  contract,  un- 
der the  expectation  that  it  will  be  fulfilled  and  cannot,  upon  a 
breach  of  it,  have  an  election  to  refuse  to  receive  what  has 
been  done,  and  thus  discharge  himself  from  payment.    *    *   * 

But  we  think  this  difference  in  the  nature  of  the  contracts 
does  not  justify  the  application  of  a  different  rule  in  relation 
to  them.  The  party  who  contracts  for  labor  merely,  for  a 
certain  period,  does  so  with  the  full  knowledge  that  he  must, 
from  the  nature  of  the  case,  be  accepting  part  performance 
from  day  to  day,  if  the  other  party  commences  the  perform- 
ance, and  with  knowledge,  also,  that  the  other  party  may 
eventually  fail  of  completing  the  entire  term.  It  is  said  that 
in  those  cases  where  the  plaintiff  has  been  permitted  to  re- 
cover, there  was  an  acceptance  of  what  had  been  done.  The 
answer  is,  that  where  the  contract  is  to  labor  from  day  to  day 
for  a  certain  period,  the  party  for  whom  the  labor  is  done  in 
truth  stipulates  to  receive  it  from  day  to  day  as  it  is  perform- 
ed; and,  although  the  other  may  not  eventually  do  all  that  he 
has  contracted  to  do,  there  has  been  necessarily  an  acceptance 
of  what  has  been  done  in  pursuance  of  the  contract,  and  the 
party  must  have  understood,  when  he  made  the  conti'act,  that 
there  was  to  be  such  an  acceptance.  *  -x-  * 

In  case  of  a  faihire  to  perform  such  special  contract,  by 
the  default  of  the  party  contracting  to  do  the  service,  if  the 
money  is  not  due  by  the  terms  of  the  special  agreement,  he 
is  not  entitled  to  recover  for  his  labor  or  for  the  materials  fur- 


CONTKACTS  FOR  SERVICES.  295 

Liberal  Eule  in  sucli  Cases— Britton  v.  Turner. 

nished,  unless  the  other  partj  receives   what  has  been  done  or 
furnished  and,  upon  the  whole  case,  derives  a  benefit  from  it. 

But  if,  where  a  contract  is  made  of  such  a  character,  a  par- 
ty actually  receives  labor  or  materials,  and  thereby  derives  a 
benefit  and  advantage  over  and  above  the  damage  which  has 
resulted  from  the  breach  of  the  contract  by  the  other  party, 
the  labor  actually  done  and  the  value  receiveds  furnish  a 
new  consideration,  and  the  law  thereupon  raises  a  promise  to 
pay  to  the  extent  of  the  reasonable  worth  of  such  excess. 
This  may  be  considered  as  making  a  new  case,  one  not  within 
the  original  agreement,  and  the  party  is  entitled  to  recover  on 
his  new  case  for  work  done  not  as  agreed,  yet  accepted  by  the 
defendant.  ****** 

And  the  rule  is  the  same  whether  it  was  received  and 
accepted  by  the  assent  of  the  party,  prior  to  the  breacli,  under 
a  contract  by  which,  from  its  nature,  he  was  to  receive  labor 
from  time  to  time,  until  the  completion  of  the  whole  .contract; 
or,  whether  it  M-as  received  and  accepted  by  an  assent  subse- 
quent to  the  performance  of  all  which  was  in  fact  done.  If 
he  received  it  under  such  circumstances  as  precluded  him  from 
rejecting  it  afterwards,  that  does  not  alter  the  case;  it  has  still 
been  received  by  his  assent.  *  •'^  *  The  amount  however 
for  which  the  employer  ought  to  be  charged  where  the  laborer 
abandons  his  contract  is  only  the  reasonable  worth,  or  amount 
of  advantage  which  he  receives  upon  the  whole  transaction, 
and  in  estimating  the  value  of  the  labor  the  contract  jirice  of 
the  service  cannot  be  exceeded.  *  *  *  The  benefit  and 
advantage  which  the  party  takes  by  the  labor  therefore  is  the 
amount  of  value  which  he  receives,  if  any,  after  deducting  the 
amount  of  damage;  and  if  he  elects  to  put  in  this  defense  he 
is  entitled  so  to  do;  and  the  implied  j^romise  which  the  law 
will  raise,  in  such  case,  is  to  pay  such  amount  of  the  stipu- 
lated price  for  the  whole  labor  as  remains  after  deducting  what 
it  would  cost  to  procure  a  completion  of  the  residue  of  the 


296  THE  LAW  OF  DAMAGES. 


Tendency  of  Decisions  in  Harmony  witli  Britton  v.  Turner. 


service,  and  also  any  damage  wliicli  has  been  sustained  by  rea- 
son of  the  non-fuliillraent  of  the  contract."  '' 

§  332.    Tendency  of  the  Decisions  in  Harmony  with 
Britton  v.  Turner.— We  have  set  forth  the  opinion  of  the 

learned  judge  thus  fully,  in  Britton  v.  2urner,  not  only 
because  it  may  be  considered  a  leading  case,  relating  to  dam- 
ao-es  on  part  performance  of  a  contract  for  labor,  and  because 
it  applies  as  well  in  cases  of  special  contracts  to  build,  whether 
the  contractor  is  to  furnish  material  or  not;  but  also,  on  account 
of  the  able  argument  contained  therein  in  support  of  the 
conclusions  of  the  court.  The  tendency  of  the  decisions  seem 
to  be  in  harmony  with  the  views  thus  ably  set  forth. 

Thus,  in  Iowa,  in  an  action  for  work  done  and  performed,  it 
appeared  that  the  plaintiff  was  hired  by  the  defendant  to  work 
for  him  for  six  months,  and  he  left  the  services  of  the  defend- 
ant after  thus  laboring  four  months.  On  the  trial  the  defend- 
ant asked  the  court  to  instruct  the  jury  that  if  the  plaintiff 
hired  to  the  defendant  for  six  months,  and  left  his  service 
without  reasonable  cause  before  the  expiration  of  the  terni,  he 
had  no  claim  upon  the  defendant  for  the  services  rendered. 

The  court  refused  so  to  instruct,  and  there  was  a  verdict 
and  judgment  for  the  plaintiff.  In  the  Supreme  Court  of  that 
state  the  judgment  was  affirmed.  Stockton  in  delivering  the 
opinion  of  the  court  said:  "We  think  the  instruction  was 
rightfully  refused.  If  the  parties  had  expressly  agreed,  that 
if  the  plaintiff  left  the  services  of  the  defendant  before  the 
expiration  of  the  time  limited,  nothing  was  to  be  considered 
as  earned  by  him,  there  could  be  no  doubt  that  the  plaintiff 
could  not  recover.  But  all  that  is  shown  is,  that  upon  an 
agreement  to  labor  for  six  months,  the  plaintiff  labors  four 
months  and  refuses  to  labor  any  longer,  and  sues  for  the  value 
of  the  labor  performed.  We  think  he  is  entitled  to  recover 
as  upon  a  quantum  'meruit,  and  need  not,  as  a  condition  prece- 

«  Britton  v.  Turner,  6  N.  H.,  495,  481. 


CONTRACTS  FOR  SERYICES.  29T 


Tendency  of  Decisions  in  Harmony  with  Britton  v.  Turner. 


dent,  first  sliow  that  he  had  performed  his  entire  contract,  or 
that  he  left  the  services  of  his  employer  upon  good  cause.  We 
are  satisfied  with  the  rule  established  in  Britton  v.  Turner, 
6  N.  H.j  481,  giving  its  full  weight  for  the  protection  of  the 
employer  in  such  cases,  with  the  qualifying  rule  that  where 
the  contract  is  broken  by  the  fault  of  the  party  employed, 
after  part  performance  has  been  received,  the  employer  is 
entitled  if  he  so  elect,  to  put  the  breach  of  contract  in  defense 
for  the  purpose  of  reducing  damages,  or  showing  that  nothing 
is  due;  and  to  deduct  what  it  will  reasonably  cost  to  secure  a 
completion  of  the  whole  service,  as  well  as  any  damage  sus- 
tained by  reason  of  the  non-fulfillment  of  the  contract.  If,  in 
such  a  case,  it  is  found  that  the  damages  are  equal  to,  or  greater 
than,  the  value  of  the  labor  performed  and  that  the  employer, 
having  a  right  to  the  performance  of  the  whole  contract,  has 
not  received  any  beneficial  service,  the  plaintiff  is  not  entitled 
to  recover."" 

§  333.  The  same  doctrine  is  recognized  in  that  state  as 
applicable  to  building  contracts.  The  plaintiff  agreed  to 
build  for  the  defendant  a  barn,  shed,  and  corn  crib,  under 
a  special  contract,  for  one  hundred  and  five  dollars,  and 
have  it  completed  by  a  specified  time.  The  plaintifi'  failed  to 
complete  the  job  in  the  specified  time,  and  also  failed  to 
do  all  of  said  job  in  a  good  and  workmanlike  manner. 
And  the  referee  to  whom  the  case  was  referred,  found 
that  it  would  cost  the  sura  of  twenty-seven  dollars  to 
make  the  work  comply  with  the  contract,  and  that  the  defend- 
ant had  paid  fifty-five  dollars  to  apply  on  the  contract;  and, 
that  there  was  due  to  the  plaintiff  twenty-three  dollars;  which 
report  was  confirmed  and  judgment  rendered  accordingly. 
The  learned  Justice  Dillon,  in  delivering  the  opinion  of 
the  Supreme  Court,  on  appeal,  observed  as  follows:  "This 
question   was   settled   in   this   state   by  the   case   of  Pixler 

=»  Pixler  V.  Nichols,  8  la..  106. 


298  THE  LAW  OF  DAMAGES. 

states  in  wliicli  tlie  Doctrine  has  been  Recognized. 

V.  Nicliols^  8  Iowa,  106,  whicli  distinctly  recognized  and 
expressly  followed  the  case'  of  Brltton  v.  Turner,  6  X.  H., 
481.  That  celebrated  case  has  been  criticised,  doubted,  and 
denied  to  be  sound.  It  is  frequently  said  to  be  good  equity, 
but  bad  law.  Yet  its  principles  have  been  gradually 
winning  their  way  into  professional  and  judicial  favor.  It  is 
hottotned  on  justice  and  is  right  upon  principle,  however  it 
may  be  upon  the  technical  and  more  illiberal  rules  of  the  com- 
mon law  as  found  in  the  old  cases.  With  the  known  and 
natural  disposition  of  courts  and  juries  to  disfavor  the  cause 
of  him  who  has  broken  his  contract  and  yet  seeks  a  recovery, 
and  with  the  limitations  stated  in  Pixler  v.  Nichols,  the  appli- 
cation of  this  rule  will  not  be  found  practically  to  work  injus- 
tice to  the  employer  or  contracting  party  who  is  without  fault. 
The  rule  will  a2:>ply  to  such  cases  as  the  one  under  considera- 
tion, i.  e.,  formal  acceptance  of  the  work  or  an  acquiescence 
in  the  breach,  is  not  necessarily  essential  to  a  recovery."  " 

§  334.  States  in  which  the  Doctrine  has  been  Recog- 
nized.— The  doctrine  of  Britton  v.  Turner,  is  also  now  fully 
or  partially  recognized  in  Michigan,  Wisconsin,  Indiana,  Illi- 
nois, Pennsylvania,  Maine,  Texas,  Tennessee,  Missouri,  ]S'ew 
York,  and  other  states." 

In  each  class  of  cases  the  integrity  of  the  original  contract 

*3  McCoy  V.  Hedge,  18  la.,  66.  See,  also,  the  same  doctrine  in  that  state, 
in  Davis  v.  Fish,  1  G.  Greene  (la.),  406;  Crookshank  v.  Mallory,  2  Id.,  257; 
Eyserv.  Weissgerber,  Id.,  463;  Mitchell  v.  Wiscotta  Land  Co..  3  Id.,  209; 
Tice  &  Mcintosh  v.  Sherman,  10  Id.,  60;  Convin  v.  Wallace,  17'Id.,  374;  Mc- 
Affee  V.  Hale,  24  Id.,  355. 

=4  See,  Wiley  v.  Frac.  Sch.  Dist.  No.  1,  25  Mich.,  419;  Bishop  v.  Price,  24 
Wis.,  480;  Trobridge  v.  Barrett,  30  Wis.,  661;  Jones  v.  Jones,  2  Swan 
(Tenn.),  605;  Edgington  v.  Pickle,  1  Smed.  (Tenn.),  122;  Allen  v. 
McKibbon,  5  Mich.,  449;  Davis  v.  Barrington,  10  Frost  (IST.  H.),  517;  Sinclair 
V.  Talmage,  35  Barb.  (N.  Y.),  602;  Nibe  v.  Brauhn,  24  111.,  268,  relating 
to  a  case  of  waiver  in  respect  to  time;  McKinney  v.  Springer,  3  Ind.,  69. 
See,  also,  Dermot  v.  Jones,  23  How.,  220;  Western  v.  Sharp,  14  B.  Mon. 
(Ky.),  177;  Lamb  v.  Brolaski,  38  Mo.,  51;  Newman  v.  McGregor,  5  Ohio  St., 
349.    But,  see,  AUen  v.  Curies,  6  Id.,  505. 


CONTRACTS  FOR  SERYICES.  299 

Construction  of  Contract— Application  of  Rule. 

and  the  riglits  and  obligations  of  the  parties  under  it,  are 
generally  maintained.  In  each,  the  courts  disclaim  any  pur- 
pose of  making  contracts  for  the  parties.  But  the  difference 
in  the  result  is  owing  chiefly,  if  not  entirely,  to  the  diverse 
views  of  facts  and  circumstances,  relating  to  the  performance, 
or  part  performance  of  the  contract,  as  a  waiver  of  strict  com- 
pliance therewith,  and  to  a*  difference  in  construction  of  the 
original  contract. 

§  335.  Construction  of  the  Contract. — In  Britton  v. 
Turner^  and  like  cases,  the  courts  have  considered  that  the 
jDarties  entered  into  the  contract  with  the  understanding  that, 
from  day  to  day  the  work  would  go  on  and  be  accepted,  with 
the  possibility  that  it  might  not  be  fully  completed;  and,  in 
cases  where  there  is  a  failure  of  full  performance,  the  party 
receiving  a  benefit,  and  continuing  to  enjoy  it,  without  an  offer 
to  return  or  the  possibility  of  returning  the  benefit  thus 
received,  and  thereby  placing  the  other  party  in  atata  quo^ 
should  pay  to  the  other  so  much  as  he  is  reasonably  entitled 
to.  The  hardship  of  the  other,  and  what  may  be  termed  the 
rigid  rule,  would  in  many  cases  be  so  manifest  that  it  has  per- 
haps driven  the  courts  to  some  ingenuity  for  arguments  to 
overcome  mere  technical  objections  to  the  liberal  doctrine. 
But  the  reasons,  in  view  of  these  circumstances  of  great  hard- 
ship and  injustice,  which  must  otherwise  frequently  occur, 
generally  prove  acceptable.  And  the  doctrine,  in  view  of  its 
manifest  justice,  is  likely  to  grow  in  favor  until  it  becomes 
universally  recognized. 

§  336.  Application  of  the  Rule— In  Missouri,  where 
the  plaintiff  abandoned  the  written  contract  for  labor  and 
services,  and  in  au  action  claimed  on  a  quantum  meruit^  it 
was  held,  that  the  plaintiff  could  recover  for  the  value  of  the 
benefit  and  advantage  which  the  defendant  received  from 
the  work  done  under  the  contract,  if  any,  after  deducting  the 
amount  of  damage  the  defendant  sustained  by  reason  of  the 


300  THE  LAW  OF  DAMAGES. 


Damages  where  Work  is  Accepted— Method  of  Computing,  etc. 


failure  of  the  plaintiff  to  do  the  work  as  agi'ced;  but  that  the 
allowance  for  the  work  must  not  exceed  the  contract  price." 

And,  in  Louisiana,  where  the  plaintiff  had  been  in  default 
so  that  he  could  not  sue  upon  the  contract,  but  the  other 
party  had  stood  by  and  had  seen  hira  prosecute  the  work  with- 
out objection,  and  had  been  benefitted  by  his  labor  and  mate- 
rials, he  was  held  entitled  to  compensation  to  the  extent  of  such 
benefit.^' 

§  337.    Damages   where  the  Work  is  Accepted.— 

The  measure  of  damages  in  an  action  for  work  accepted,  but 
which  was  not  done  according  to  the  contract,  would  generally 
be  the  contract  price,  less  the  payments  made,  and  any  dam- 
ages sustained  by  the  defendant  by  reason  of  a  failure  of  the 
plaintiff'  to  fully  perform."  The  contract  price  should  control 
in  assessing  the  damages  so  far  as  they  can  be  followed,  where 
the  special  contract  was  not  strictly  fulfilled  by  the  plaintiff.''' 
And  where  the  plaintiff  cannot  sue  on  the  contract,  and  sues 
on  a  quantum  meruit,  his  recovery  for  the  work  done,  must 
be  limited  by  the  contract  price. ^' 

§  338.   Method  of  Computing  Damages  in  such  Cases. 

— In  all  cases  where  the  plaintiff,  without  having  fully  per- 
formed his  contract,  is  entitled  to  recover  for  the  actual  benefit 
which  the  defendant  has  received  from  his  labor,  the  method 
of  estimating  such  benefit  is  to  deduct  from  the  contract  price 
such  sums  as  will  enable  the  other  party  to  get  the  contract 

=s  Lamb  v.  Brolaski,  38  Mo.,  51.  See,  also,  Lowe  v.  Sinkleai.-,  27  Mo.,  308; 
Lee  V.  Ashbrook,  14  Mo.,  378.  The  decisions  on  this  question  in  Missouri 
may  not  appear  in  harmony.  See,  ante,  §  329,  note  13;  but  this  may  be 
referred  to  technicalities  relating  to  the  forms  of  action.  It  is  usually  neces- 
sary in  such  cases  to  sue  on  a  quantum  meruit,  and  not  on  the  contract  itself. 
And  apparent  conflicts  in  decisions  may  be  accounted  for  on  this  ground. 

=*  Garland  v.  New  Orleans,  13  La.  An.,  43. 

=7  Becker  v.  Hecker,  9  Ind.,  497;  Corwin  v.  Wallace,  17  la.,  374;  Morse  v. 
Richards,  29  Mo.,  99;  Merrow  v.  Hunton,  25  Vt.,  9. 

=8  Walcott  V.  Yeager,  11  Ind.,  84. 

»  Western  v.  Sharp,  14  B.  Men.  (Ky.),'  177. 


CONTKACTS  FOR  SERYICES.  301 


Refusal  of  Employer  to  Accept  Services. 


completed  according  to  its  terms;  or,  where  that  is  impossible 
or  uureasonable,  such  sum  as  will  fully  compensate  him  for 
the  work  and  the  insufficiency  of  the  materials;  and,  also,  to 
deduct  from  the  contract  price,  whatever  additional  damages 
the  breach  of  contract  has  occasioned  him.'" 

And  where  the  plaintift  entered  into  a  special  contract  to 
build  a  house  for  the  defendant,  and  it  was  built,  but  not 
according  to  contract,  and  the  defendant  objected  from  time 
to  time  to  parts  of  the  work  and  materials;  not,  however, 
ordering  the  builder  to  desist,  but  acquiescing  in  the  progress 
of  the  work,  and  finally  refusing  to  accept  it  when  Unished; 
it  was  held,  that  if  the  work  was  beneficial  to  the  defendant, 
lie  was  liable  for  the  materials  and  labor,  not  on  the  contract, 
but  on  the  general  counts  in  assumpsit."  The  measure  of 
damages  in  such  cases  is  the  contract  price,  deducting  as  much 
as  the  house  is  worth  less  by  reason  of  the  defects  and  varia- 
tions from  the  contract."  And,  in  a  suit  for  the  price  of  labor 
in  repairing  a  vessel,  where  the  defendants  claimed  damages 
for  the  delay  in  completing  the  repairs  within  a  reasonable 
time,  it  was  held,  that  the  measure  of  damages  was  the  value 
of  the  rent  or  charter  of  the  vessel  during  the  delay,  but  not 
the  probable  profits  of  the  vessel." 

§  339.    Refusal  of  Employer  to  Accept  of  Services.— 

Where  the  employer  refuses  to  accept  of  the  services,  or  to 
have  the  work    contracted  for  performed,  or   prevents   the 


4°  Kelly  V.  Bradford,  33  Vt.,  35;  ante,  §  334,  and  note. 
*'  Hayward  v.  Leonard,  7  Pick.  (Mass.),  181.    See,  also.  Smith  v.  Proprie- 
tors of  Meeting-House,  8  Pick.,  187;  Wadleigh  v.  Sutton,  6  N.  H.,  15. 

42  Ibid.  See  also.  Linningdale  v.  Livingston,  10  John.  (N.  Y.),  36;  Jewell 
V.  Schroeppel,  4  Cow.,  564;  Morford  v.  Ambrose,  3  J.  J.  Marsh.  (Ky.),  690; 
Kewman  v.  McGregor,  5  Ohio,  351. 

43  Rogers  v.  Beard,  36  Barb.  (N.  Y.).  31.  See,  further  on  this  subject, 
Wilson  V.  Graham,  14  Tex.,  222;  SneUing  v.  Lynch,  5  Allen  (Mass.),  443; 
MoiTison  V.  Lovejoy,  6  Minn.,  319;  Woobury  v.  Jones,  44  N.  H.,  206; 
Mastertonv. Mayor,  etc.,  7  Hill  (N.  Y.),  62;  DooUttle  v.  McColough,  12  Ohio 
St.,  360;  Tait  v.  Sherman,  10  la.,  60. 


302  THE  LAW  OF  DAMAGES. 


Refusal  of  Employer  to  Accept  Services. 


employe  from  performing  the  same  in  any  manner,  the  usual 
measure  of  damages,  where  the  contract  relates  to  the  manu- 
facture of  an  article  or  the  construction  of  a  building,  or  the 
performance  of  some  other  specific  act,  is  the  difference 
between  the  price  agreed  to  be  paid  and  what  it  would  have 
cost  the  employe  to  complete  it,  provided  such  cost  would  be 
less  than  the  contract  price." 

And  if  he  is  prevented  by  the  employer  from  completing  a 
contract  to  build,  or  to  do  any  other  specific  act,  it  has  been 
held  that  he  could  recover  only  the  contract  price  for  the  work 
done;  and  in  addition,  such  damages  as  he  has  sustained 
according  to  the  foregoing  rule,  by  not  being  allowed  to  finish 
the  job.'' 

But  in  Vermont  where  a  party  to  a  special  contract  for  labor, 
for  which  an  entire  sum  was  to  be  paid,  performed  a  part  of 
the  labor  according  to  the  terms  of  the  contract,  and  was  pre- 
vented from  performing  the  balance,  by  the  act  or  default  of 
the  other  party,  it  was  held  that  the  party  performing  the 
labor  might  sue,  either  on  the  contract  to  recover  the  damages 
for  the  breach  of  it  or  in  general  assumpsit,  to  recover  for  the 
value  of  what  he  had  done.  And  that  if  he  claimed  for  a  breach 
of  the  contract  the  damages  would  be  regulated  by  the  contract 
price,  and  he  could  recover  such  a  proportion  of  the  whole 
contract  price  as  the  work  done  bore  to  the  whole  work,  and 
the  profit  he  could  have  made  if  allowed  to  complete  the 
unperformed  work,  and  the  loss  he  may  have  incurred  in 
employing  labor  and  means  to  perform  the  residue;  but  if  he 


44  Myers  v.  York,  etc.,  R.  Co.,  2  Curt.,  28;  George  v.  Caliawba,  etc.,  R. 
Co.,  8  Ala.,  2.34;  Dibold  v.  Minot,  9  la.,  503;  Richmond  v.  Dubuque  &  Sioirx 
City  R.  Co.,  26  la.,  191;  33  Id.,  423. 

45  Western  v.  Sharp,  14  B.  Mon.  (Ky.),  177.  See  also,  Clark  v.  Marsiglia, 
1  Den.  (N.  Y.),  317;  UnderMll  v.  North  Am.,  etc.,  Co.,  36-  Barb.,  (N.  Y.), 
354.  See  also,  Hosmer  v.  Wilson,  7  Mich.,  294.  See  also  Allen  v.  ThraU, 
36  Vt.,  711. 


CON"TRAGTS  FOE  SEEYICES.  303 


Duty  of  Discharged  Party  to  seek  other  Employment. 


sued  oil  a  quantum  meruit,  he  might  then  recover  a  reasona- 
ble compensation  for  the  work  performed." 

§  340.  Duty  of  Discharged  Party  to  Seek  other 
Emi)loymeDt. — In  an  action  by  an  employe  to  recover  for 
personal  services  where  he  has  been  dismissed  by  the  employer 
without  sufficient  cause,  and  prevented  from  completing  the  ser- 
vices according  to  the  contract,  the  employer  is  liable  for  such 
damages  as  the  employe  may  sustain.  And  where  the  contract 
provides  for  service  for  a  definite  time  and  for  a  specified  price, 
the  employe  may  recover  for  the  whole  time  at  the  contract 
rate  or  price,  unless  the  plaintifif  has  or  could  have  obtained 
other  proper  employment  by  the  use  of  reasonable  diligence; 
in  which  case  the  measure  of  damages  would  be  the  contract 
price  for  the  whole  time,  less  the  amount  received  in  such  other 
employment,  or  that  could  have  been  earned  by  the  use  of 
such  diligence  in  securing  such  employment." 

But  where  suit  is  brought  before  the  time  of  service  con- 
tracted for  expires,  the  plaintiff  can  only  recover  pro  rata,  to 
the  time  suit  is  brought." 

«  Chamberlain  v.  Scott,  33  Vt.,  80;  Derby  v.  Johnson,  21  Vt.,  18;  Board- 
man  V.  Keeler,  21  Vt.,  77.  See,  also,  Smith's  L.  Cas.  (H.  &  Ws  notes),  Vol. 
2,  p.  38,  et  seq.  But  in  New  York  in  such  a  case  he  was  limited  in  the  recov- 
ery to  the  contract  prices;  Coon  v.  Greenman,  7  Wend.,  121. 

44  Hunt  V.  Crane,  33  Miss.,  669;  Prichard  v.  Martin,  27  Miss.,  306;  Danley 
V.  Williams,  16  Wis.,  581;  Steinburg  v.  Gebhert,  41  Mo.,  520;  Thompson  v. 
Wood,  1  HHt.  (N.  Y.),  93;  Gordon  v.  Brewster,  7  Wis.,  355;  Hein-v.  Wolf, 
1  E.  D.  S.,  N.  Y.,  70;  Clark  v.  Manchester,  51  N.  H.,  594,  (1872).  The 
price  of  the  services  agreed  upon  is,  prima  facie,  the  amount  of  damages.  ' 
Nearns  v.  Harbert,  25  Mo.,  352;  Pond  v.  Wyman,  15  Mo.,  175;  Nations  v. 
Cudd,  22  Tex.,  550.  And  he  may  under  certain  circumstances  recover  dam- 
ages beyond  the  value  of  Ms  wages;  Hassel  v.  Nutt,  14  Tex.,  260;  Fuller  v. 
Little,  61  111.,  21;  Smith's  L.  Cas.  (H.  &  W.'sN.),  45,  et  seq.  See  also,  ante, 
§  133,  where  this  subject  is  considered. 

45  Wright  V.  Falkner,  37  Ala.,  274;  1  Ala.  Sel.  Cases,  231;  Foye  v.  Dabney, 
1  Sprague  212;  Hunt  v.  Colbum,  Id.,  215;  Ream  v.  Watkins,  27  Mo.,  516. 
See,  also,  WUUams  v.  The  Chicago  Coal  Co.,  60  111.,  149,  where  it  was  held 
that  if  the  employe  thus  discharged  engages  in  business  of  a  different  char- 
acter requiring  harder  labor  and  more  capital,  the  full  amount  of  his  earnings 
should  not  be  deducted. 


304  THE  LAW  OF  DAMAGES. 

Code  of  Louisiana— Duty  of  Party  to  use  Reasonable  Means  to  Prevent  Loss. 

§  341.  Under  the  Code  of  Louisiana.— And  in  Louisi- 
ana, under  her  civil  Code,  which  provides  that,  "  if  without 
any  serious  ground  of  complaint  a  man  should  send  awa_y  a 
laborer,  whose  services  he  had  hired  for  a  certain  time,  before 
that  time  had  expired,  he  shall  be  bound  to  pay  the  laljorer 
the  whole  of  the  salary  he  would  have  been  entitled  to  receive 
had  the  full  term  of  his  service  arrived;"  it  was  held,  that  the 
statute  is  in  the  nature  of  a  penal  statute,  and  must  be  strictly 
construed,  and  cannot  be  applied  to  the  case  of  a  contract  for 
lettin^i^  and  hireing,  entirely  unperformed  in  all  its  parts;  and 
that  in  such  cases  only  the  actual  damages  sustained  by  the 
non-performance  of  the  contract  can  be  recovered." 

And  under  the  Code  of  that  state,  the  employe  who  leaves 
the  services  of  the  employer  before  the  time  of  his  engage- 
ment expires,  without  reasonable  cause,  can  recover  nothing." 

It  will  be  readily  inferred  that  the  employe  or  employer 
may  frequently  be  responsible,  under  the  rnle  in  Hadley  v. 
Baxendale,  for  remote  and  extended  consequences  that  are  the 
natural  and  direct  result  of  his  breach  of  the  contract,  and  to 
such  losses  as  the  parties  contemplated,  or  had  reason  to  con- 
template, as  the  consequences  of  a  breach  of  it." 

§  342.  Duty  of  the  Party  to  use  Reasonable  3Ieans 
to  Prevent  Loss . — But  the  right  to  recover  consequential 
damages  is  subject  to  the  qualification,  in  all  cases,  that  the 
plaintiff  shall  not  be  permitted  to  recover  for  such  losses  as 
might  have  been  j)  re  vented  by  the  expenditure  of  a  small  sum 
or  by  the  exercise  of  reasonable  care. 

47Trefetlien  v.  Lock,  16  La.  An.,  19. 

48  Barbell  v.  Lallande,  23  La.  An.,  317  (1871). 

•♦9  See,  ante,  §  252,  also,  Hadley  v.  Baxendale,  9Ecli.,  341;  Singer  v.  Farns- 
worth,  2  Ind.,  597;  Fowler  v.  WaUer,  25  Texas,  695;  CoUins  v.  Baumgartner, 
52  Pa.  St.,  461;  Haven  v.  Wakefield,  39  lU.,  509;  Smith  v.  Bristof,  33  la., 
24;  Johnson  v.  Mathews,  5  Kans.,  118;  Davis  v.  Talcott,  14  Barb.,  N.  Y., 
611 ;  12  N.  Y.,  184;  Walters  v.  Towers,  8  Exch.,  401;  Portman  v.  MidcUeton, 
4  C.  B.  N.  S.,  322;  4  Jur.,  N.  S.,  689;  27  L.  J.  C.  P.,  431.  See  also,  collec- 
tion of  English  cases,  2  Smith's  L.  C,  (H.  &  W.  notes),  491,  et  seq. 


CONTKACTS  FOE  SERYICES.  305 

Deviation  by  Consent— Conclusions. 

Thus,  where  the  defendant  contracted  with  plaintiff  to 
"  make  a  tight  roof  for  the  terra  of  five  years,"  and  there  was 
a  breach;  it  was  held,  that  the  plaintiff  could  only  recover  the 
cost  of  putting  the  roof  in  the  condition  required  by  the  con- 
tract, and  nothing  for  the  injury  to  the  contents  or  interior  of 
the  building  in  consequence  of  the  defects  which  might  have 
been  avoided  with  reasonable  care/" 

But  even  in  such  a  case,  if  the  defendant  contracted  with 
the  knowledge  that  such  losses  would  accrue  from  a  breach,  he 
should  at  least  he  liable  for  snch  losses  as  occurred,  before  the 
necessary  repairs  could  be- made, 

§  343.  Deviation  by  Consent.— In  cases  of  deviation 
from  the  stipulations  of  the  original  contract  by  mutual 
agreement  between  the  parties,  the  contract  prices  govern,  so 
far  as  they  are  apj^licable,  or  so  far  as  the  work  can  be  traced 
according  to  the  stipulations  of  the  original  contract;  but  if 
extra  work  is  done,  not  provided  for  in  such  contract,  and  to 
which  its  provisions  as  to  prices  cannot  be  applied,  the  em- 
ploye may  recover  therefor,  as  on  a  quantum  Tneruit.  A 
deviation  by  consent  may  be  treated  as  a  new  contract,  so  fiir 
as  the  deviation  is  concerned,  and  a  modification  of  the  orig- 
inal in  that  respect,  where  the  circumstances  require  it."' 

§344.  Conclusions. — The  following  conclusions  are,  we 
think,  fairly  deducible  from  the  authorities: 

1.  In  case  of  a  contract  to  do  a  specific  work  or  service, 
and  a  failure  to  fully  complete  the  same  as  stipulated,  if,  from 
the  circumstances  there  is  an  acceptance  of  the  work;  as,  where 
the  employer  sees  the  work  as  it  progresses  and  makes  no  ob- 
jection at  the  time,  or,  where  he  directs  as  to  the  manner  of 

5°  Goodard  v.  Barnard,  82  Mass.  (16  Gray),  205.  See,  also,  Peters  v.  Whit- 
ney, 23  Barb.  (N.  Y.),  24;  ante,  Chap.  8. 

SI  Merill  v.  The  Ithica  &  Owego  R.  Co.,  16  Wend.,   586;  Marsh  v.   Rich- 
ards, 29  Mo.,  99;  Barcus  v.  Hannibal,  etc.,  R.  Co.,  and  Paris  Plank  R.  Co., 
26  Id.,  102;  Sedg.  on  Dam.,  221;  McClelland  v.  Snider,  18111.,  58;  Western 
v.  Sharp,  14  B.  Mon.  (Ky.),  177;  Brigham  v.  Hawley,  17  lU.,  38. 
20 


306  THE  LAW  OF  DAMAGES. 

Conclusions. 

executing  the  work,  after  objections  made  to  parts  of  the 
work  as  it  was  being  done,  and  permits  the  same  to  go  on; 
this  is  a  waiver  of  a  strict  fulfillment  of  the  contract  in  respect 
to  such  defects,  and  an  acceptance  of  what  is  done  under  it, 
and  the  employe  may  recover  at  least  so  much  as  the  work 
and  material  are  worth,  less  the  damages  sustained  by  reason 
of  the  incomplete  performance. 

2.  In  contracts  for  personal  services,  for  a  definite  time 
and  price,  if  the  employe  fails  to  work  for  the  whole  time 
stipulated,  he  may  recover  so  much  as  the  work  is  reasonably 
worth,  less  the  damages  sustained  by  the  employer  for  the 
failure  of  a  full  performance  on  the  part  of  the  employe  ac- 
cording to  the  contract. 

3.  That  in  all  of  these  cases  the  defendant,  if  he  claims 
damages  for  the  breach  of  the  contract  on  the  part  of  the 
plaintiff,  should  be  allowed,  by  way  of  recoupment  or  counter- 
claim, all  such  damages  as  he  may  hav-e  sustained  by  a  fail- 
ure of  the  plaintiff  fully  to  perform  the   contract  on  his  part. 


BAILMENTS.  307 


Damages  in  case  of  Bailments. 


CHAPTER  XIT. 


DAMAGES  m  CASES  OF  BAILMENTS. 

Section  359.    General  Principles. 

360.  Depositum, 

361.  Mandatum. 

362.  Commodatum. 

363.  Pignus,  or  Pledging. 

364.  What  the  Pledgee  may  Recover  for  a  Conversion. 

365.  Locatio,  or  Hiring  for  a  Eeward. 

366.  "Where  the  Bailee  is  to  bestow  Care  or  Labor. 

367.  "Warehousemen. 

368.  Innkeepers. 

369.  Common  Carriers— Insurers. 

370.  The  Rule  not  Applied  to  Live  Stock. 

371.  Interruption  of  Navigation. 

372.  "Where  the   Negligence   of  the   Carrier    co-operates   with 

Natural  Causes. 

373.  The  Doctrine  of  Contributory  Negligence-Application. 

374.  Non-Delivery— Measure  of  Damages. 

375.  Delay  in  the  Delivery. 

376.  Besponsibility  Beyond  the  Terminus. 

377.  Market  Value. 

378.  Partial  Loss  or  Injury. 

379.  Sale  of  the  Goods. 

380.  Interest  as  Damages. 

381.  "Where   the  Carrier  Refuses,  or  Fails  to  Transport  Accord- 

ing to  Contract. 

383.    Delay  in  Delivery,  or  Injury  to  Goods  no  ground  for  Re- 
fusal to  Accept. 


308  THE  LAW  OF  DAMAGES. 


General  Principles. 


384.    Failure  to  Deliver  Machinery,  etc.-Hadley  v.  Baxendale. 

388.  "Wlien  the  General  and  Limited  Rule  Prevails. 

389.  "WTien  the  Larger  Kule  PrevaUs. 

390.  Agreement  to  Furnish  Cargo  or  Freight, 

391.  Measure  of  Damages. 

392.  Notice  of  the  Arrival  of  Goods— Damages  for  Failure. 

393.  Refusal  to  Deliver. 

394.  Contracts  limiting  Liability. 

395.  Injury  to  Passengers. 

396.  Reasons  for  the  DifTerence  of  Liability  between  Merchan- 

dise and  Passengers. 

397.  Delay  of  Passengers. 

398.  Injury  Resulting  in  Death. 

399.  The  Doctrine  of  Contributory  Negligence. 

400.  Responsibility  for  Baggage. 

401.  Exemplary  Damages. 

402.  Contracts  Limiting  Responsibility  for  Damages. 

§  359.  General  Principles.— Mr.  Story  defines  bailment 
as  "a  delivery  of  a  thing  in  trust  for  some  special  object  or 
purpose  and  upon  a  contract,  express  or  implied,  to  conform 
to  the  object  or  purpose  of  the  trust.'"  And  this  learned  author, 
as  well  as  Sir  William  Jones,  divided  bailments  into  five  classes, 
as  follows: 

1.  Depositum;  or  naked  deposit  without  reward. 

2.  Mandatum;  or  commission,  which  is  gratuitous,  and 
by  which  the  manditary  undertakes  to  do  something  about  the 
thing  bailed. 

3.  Commodatum;  or  loan  for  use  without  pay,  and  when 
the  thing  is  to  be  restored  in  specie. 

4.  Pignus;  a  pawn  or  pledge;  as  when  the  thing  is  bailed 
to  a  creditor  as  security  for  a  debt. 

5.  Looatio;  or  hiring  for  a  reward. 
They  also  sub-divide  this  last  class  into: 

1.     Locatio  rei;  a  hiring,  by  which  the  hirer  gains  a  tem- 
porary use  of  the  thing. 
'  Story  on  BaU.,  §  2. 


BAILMENTS.  309 


General  Principles. 


2.  Locatio  ojperis  faciendi;  when  something  is  to  be  done 
to  the  thing  delivered;  and, 

3.  Locatio  operis  rnercium  vehendarumj  where  the  thing 
is  merely  to  be  carried  or  transported  from  one  place  to  an- 
other. 

The  duty  and  liability  of  the  bailee,  and  the  measure  of 
damages,  differ  in  these  various  kinds  of  bailments.  And 
they  are  sometimes  classified  into  three  kinds,  to  correspond 
with  the  three  degrees  of  liability,  which  appertain  to  these 
classes.  In  relation  to  such  a  classification,  Professor  Parsons 
remarks:  "The  first  of  these  is,  where  the  bailment  is  for  the 
benefit  of  the  bailor  alone.  In  this  class,  but  slight  care  is 
required  of  the  bailee,  and  he  is  responsible  only  for  gross 
neo-liwence.  The  second,  is  where  the  bailment  is  of  benefit 
to  the  bailee  alone.  In  this  class,  the  greatest  care  is  required 
of  the  bailee,  and  he  is  responsible  for  slight  negligence. 
The  third,  is  where  the  bailment  is  for  the  benefit  of  the 
bailor  and  bailee.  In  this  class,  ordinary  care  is  required  of 
the  bailee,  and  he  is  responsible  for  ordinary  negligence." "" 

Although  the  liability  of  the  bailee  in  these  various  kinds 
of  bailment  depends  upon  the  degree  of  care  bestowed,  or  its 
correlative,  the  degree  of  negligence  with  which  he  is  charge- 
able, it  is  difficult  to  define  and  clearly  distinguish  between 
them  in  many  cases. 

The  most  precise  statement  that  has  been  made  in  reference 
to  this  subject  is,  that  ordinary  care  is  the  care  which  persons 
of  ordinary  prudence  bestow  upon  their  own  property  of  like 
description  and  under  like  circumstances;  and  the  want  of  this 
would  be  ordinary  negligence.  Slight  care  is  that  which  "  is 
usually  exercised  by  persons  under  circumstances  similar  to 
those  of  the  particular  case  in  which  the  question  arises,  and 
where  their  own  interests  are  to  be  protected  from  a  similar 
injury,  by  men  of  common  sense,  but  below  the  average  pru- 

'  2  Pars,  on  Con.,  88. 


JIO  THE  LAW  OF  DAMAGES. 


Depositum. 


dence  of  the  community  in  which  they  live;  "  and  a  want  of 
this  would  be  gross  negligence.  Great  care  is  such  as  is  exer- 
cised under  such  circumstances  by  men  of  unusual  prudence; 
and  the  want  of  this  would  be  slight  negligence.'  So,  ordinary 
negligence  includes  slight  negligence;  and  gross  negligence 
includes  both  ordinary  and  slight  negligence.' 

It  may  be  further  observed,  in  reference  to  bailments  in 
general,  that  the  bailor,  when  entitled  to  recover  at  all,  may 
recover  such  actual  damages  as  he  may  have  sustained.  And, 
in  the  absence  of  i3roof  of  the  actual  amount,  he  may  recover 
at  least  nominal  damages." 

The  law  raises  a  presumption  that  the  bailee  will  safely 
and  securely  keep  the  property,  which  means  due  care  in  all 
cases.  But  the  degree  of  care  and  diligence,  as  we  have  seen, 
varies  according  to  the  nature  of  the  bailment.^ 

The  bailee  may  be  said  to  be  liable  in  all  cases  for  losses 
occurring  through  his  gross  negligence,  which  sometimes 
bears  so  closely  to  fraud  that  it  has  been  said  to  be  equivalent 
to,  or  presumptive  evidence  of  it,  or  at  least  to  imjDute  fraud. 
The  character  of  this  treatise  will  not  warrant  any  further  con- 
sideration of  the  subject  of  bailments  in  general.  Sufficient 
has  been  said  to  enable  us  to  present  the  subject  of  damages, 
in  the  various  species  of  bailment,  and  to  render  intelligible 
this  particular  question.  We  will,  therefore,  proceed  to  con- 
sider the  measure  of  damages,  under  various  circumstances, 
in  the  various  classes  of  bailments. 

§  360.    Depositum. — In  this  class  of  bailments,  the  bailee 
has,  strictly  speaking,  no  general  or  special  property  in  the 


3  Shear.  &  Red.  on  Neg.,  §§  18,  19,  20,  et  seq.;  Story  on  Bail.,  §§  16,  17. 

4S.  &  R.  on  Neg.,  §  18;  Brand  v.  Troy,  etc.,  R.  Co.,  8  Barb.,  368; 
Brown  V.  Lynn,  31  Pa.  St.,  512;  Dreher  v.  Fitchburgh,  22  Wis.,  675;  John- 
son V.  Hudso*  Riv.  R.  Co..  20  N.  Y.,  65;  6  Duer,  633;  Tracy  v.  Wood,  3 
Mason,  132;  Doorman  v.  Jenkins,  2  A..  &  E.,  256. 

s  Eldridge  v.  Adams,  54  Barb.,  417;  Parker  v.  Tiffany,  52  lU.,  286. 

«  Ross  V.  Hill,  2  Man.,  Gr.  &  S.,  877. 


BAILMENTS.  311 


Depositum. 


thing  bailed,  but  only  a  naked  possession ;  and,  if  he  disposes 
of  the  article,  the  bailor,  in  an  action  therefor,  would  be 
entitled  to  its  actual  value,  as  for  a  conversion.  But  the 
bailee's  right  of  possession  would  give  him  a  right  of  action 
against  any  party,  except  the  lawful  owner,  for  a  disturbance  of 
the  possession  and  to  recover  the  goods  or  their  value.^ 

Thus,  an  action  for  the  goods  or  their  value  will  lie,  by  a 
mere  receiptor  of  goods  taken  on  execution,  against  a  party 
who  wrongfully  converts  them*. 

In  case  of  a  sale  of  the  goods  bailed,  by  the  bailee,  or  of 
non-delivery  of  the  same  on  a  demand  by  the  bailor,  he  could 
ordinarily  recover  damages,  as  for  a  conversion.'  And,  in 
cases  where  circumstances  seem  to  require  it,  the  bailor  would 
be  liable  for  the  use  of  the  property,  or  interest  on  its  value.'" 
But  provision  is  usually  made,  in  actions  for  a  conversion,  by 
rules  of  damages,  that  furnish  adequate  compensation  in  such 
cases."  And  where  the  circumstances  of  the  case  or  the  form 
of  the  action  prevents  a  measure  of  damages  as  for  a  conversion, 
the  bailee  may  be  at  least  liable  in  damages  for  the  value  of 
the  property,  on  a  failure  to  execute  the  trust. 

In  case  of  a  deposit,  the  bailee  is  also  bound  to  return  it 
with  the  increase,  or  profits,  such  as  young  animals  brought 
forth  during  the  period  of  the  deposit,  and  interest  on  money 

7  Armory  v.  Delamire,  1  Str.,  505;  Fish  v.  Cobb,  6  Vt.,  622;  Sutton  v. 
Buck,  2  Launt.,  302;  Red.  on  BaH,  §§  709,  711;  White  v.  Webb,  15  Conn., 
302. 

8  Miller  v.  Adsit,  16  Wend.,  335;  Story  on  BaU,  §§  93,  99;  Thayer  v.  Hutch- 
ins,  13  Vt.,  504;  Pool  V.  Simons,  1  N.  H.,  239;  2  Parsons  on  Con.,  117. 

9  Holbrook  V.  Wright,  24  Wend.,  169;  Stephenson  v.  Price,  30  Tex..  715; 
Jones  on  Bail.,  70,  et  seq.;  Story  on  BaH.,  §  123;  Pted.  on  Bad.,  §  707;  Par- 
ker V.  Tiffany,  52  111.,  286.  See,  also,  cases  relating  to  different  kinds  of 
bailments,  and  illustrating  the  doctrine  of  the  text.  Stephenson  v.  Hart,  4 
Bing.,  476;  Stevens  v.  Elwall,  4  Maule  &  Selw.,  259;  Millard  v.  Bridge,  4 
(N.  Y.),  361;  Esmaiy  v.  Fanning,  9  Barb.  (N.  Y.),  189. 

>o  Story  on  Bad.,  §  123.     See,  also.  Burs  v.  Spoor,  22  La.  An.,  16,  where 
the  deposit,  was  of  gold  coin. 
"  See,  damages  in  case  of  conversion,  imst.  Chap.  33. 


312  THE  LAW  OF  DAMAGES. 


Mandatum. 


deposited,  where  such  was  the  purpose  of  the  trust."  And 
it  is  evident  on  general  principles,  that  a  failure  of  the  bailee 
so  to  do,  would  subject  him  to  the  same  damages  as  though 
it  were  part  of  the  original  deposit. 

And  where  a  bailee  of  any  kind  has  failed  in  any  case  to 
exercise  the  care  and  diligence  required  by  the  character  of 
the  bailment,  and  by  which  an  injury  has  occurred  to  the  prop- 
erty bailed,  he  is  liable  to  the  bailor  therefor,  and  the  measure 
of  damages  would  ordinarily  be  the  ditierence  between  the 
value  of  the  property  as  it  is  in  its  damaged  state,  and  its 
value  in  the  condition  it  would  have  been  in,  if  it  had  not  beea 
injured." 

§  361.  Mandatum.— This  is  where  the  bailee  undertakes, 
as  we  have  seen,  to  do  some  act  for  another  in  respect  to  the 
thing  bailed,  without  recompense;  and  he  is  liable  only  for 
gross  negligence  in  respect  to  it.  But  he  is  sometimes  held 
responsible  for  negligence  for  misfeasance  where  he  would  not 
be  for  non-feasance.'' 

So,  a  further  distinction  has  been  made,  where  one  volun- 
tarily profters  to  perform  some  act  for  another  in  relation  to 
the  thing  bailed;  in  which  case  greater  care  is  imposed  on  the 
bailee  than  where  the  request  came  from  the  bailor.'-'  The 
measure  of  damages  would  be  the  same,  in  such  cases,  as  we 
have  indicated  in  cases  of  depositum. 

'^  Coykendale  v.  Eaton,  55  Barb.  (N.  Y.),  188;  s.  c,  37  How.  Pr.,  438; 
Bowlin  V.  Nye,  10  Cush.,  41G;  Rome  Railway  Co.  v.  Sulivan,  14  Geo.,  283. 
See,  also,  Parker  v.  Tiffany,  52  111.,  286. 

'3  Red.  on  Bail.,  §  314;  Bowman  v.  Teal,  23  Wend.,  306.  The  doctrine  of 
the  text  may  be  further  illustrated  by  cases  of  trespass  and  for  a  conversion, 
where  the  property  is  returned  to  the  owner,  but  is  damasked  by  the  wrong- 
doer.   See,  post,  §§  378,  837,  871. 

"*  2  Kent's  Com.,  569,  et  seq. 

'S  2  Kent's  Com.,  571,  et  seq.  And  where  the  profession  or  situation  of 
a  gratuitous  bailee  is  such  as  to  imply  skill,  he  is  liable  for  all  damages 
caused  by  liis  neglect  to  use  it.  Wilson  v.  Brett,  11  Mees.  &  W.,  113;  Red- 
field  on  Bail.,  §  690. 


BAILMENTS.  313 


Commodatum— Pignus,  or  Pledging. 


§  362.  Commodatum. — The  same  general  principles  above 
set  forth  apply,  also,  as  to  the  measure  of  damages,  where 
there  is  a  loan  for  the  use  and  benefit  of  the  bailee  without 
reward  to  the  bailor.  But  here,  the  bailee  is  responsible  for 
slight  neglect.  "What  this  neglect  is,  must  depend  upon  the 
nature  and  character  of  the  article  bailed,  and  the  circum- 
stances of  the  case.  The  ordinary  expenses  of  the  thing 
loaned  must  be  borne  by  the  borrower.  But  if  the  expenses 
are  extraordinary,  and  arise  from  the  inherent  infirmity  of  the 
article,  or  are  requisite  for  its  preservation  without  any  neg- 
lect on  the  part  of  the  borrower,  the  lender  must  bear  them ; 
and  in  case  they  are  incurred  by  the  bailee,  he  has  a  lieu  on 
the  same  for  his  reimbursement  of  such  extraordinary  expenses. 
But,  where  there  is  a  departure  from  the  terms  of  the  bail- 
ment, as  where  a  horse  dies  on  a  trip  to  another  place  than  the 
place  stipulated,  the  bailee  may  be  absolutely  liable  for  the 
value  of  the  horse.'" 

But,  an  action  in  case  of  such  a  bailment,  could  not  be 
maintained  by  the  bailor  for  the  goods  or  their  value,  where 
they,  without  the  fault  of  the  bailee,  have  been  taken  by  an 
armed  force."  Nor,  will  the  bailee  be  permitted  to  set  up  a 
title  in  himself  to  justify  a  failure  to  return  it.^' 

§  363.  Pignus,  or  Pledging.— This  is  a  bailment  of  per- 
sonal property  as  security  for  some  debt  or  engagement.  The 
j)awnee  is  required  to  bestow  only  ordinary  care,  for  the 
bailment  is  for  the  benfit  of  both  parties. 

The  pawnee  is  usually  responsible  for  all  damages  done  by 
the  use  of  the  thing  pawned.  But  where  the  thing  pawned 
would  not  be  injured  by  use,  or  would  be  benefitted  by  it,  or 
where  the  tiling  pawned  is  a  charge  upon  the  pawnee,  as  a 
cow  or  horse,  here  the  pawnee  may  usually  make  a  reasonable 
use  of  the  pawn. 

'9  Martin  v.  Culbertson,  64  N.  C,  328. 

»<»  Abram  v.  Nunn,  42  Ala.,  51;  Yale  v.  Oliver,  21  La.  An.,  454. 

«  Simpson  v.  Wren,  50  lU.,  222. 


314  THE  LAW  OF  DAMAGES. 


Pignus,  or  Pledging 


In  case  of  loss  of  the  property  througli  the  want  of  ordi- 
nary care,  the  measure  of  damages  would  generally  be  its 
value,  or  for  damages  as  for  a  conversion,  according  to 
circumstances.  And  in  case  of  injury  thereto,  under  like 
circumstances,  the  actual  loss  sustained  thereby  would  be  the 
damages.  And  in  case  of  a  sale  of  the  property  to  satisfy 
the  debt  for  which  the  same  was  pledged,  the  pledgor  could 
recover  the  balance  of  the  amount  remaining,  less  any  extra- 
ordinary expenses  incurred  by  the  pledgee,  in  the  care  and 
preservation  of  the  pledged  property,  and  the  expenses  of  the 
sale.  And  the  pledgor  would  be  entitled  to  any  increase  and 
income  of  the  pawn,  unless  the  bargain  or  circumstances  of 
the  case,  would  prevent."''  In  case  of  the  loss  of  the  property 
through  theft,  if  it  was  owing  to  the  negligence  of  the  bailee, 
he  would  be  responsible  therefor;  if  not,  he  would  not  be 
liable." 

And  where  the  bailee  sold  pledged  stocks,  without  a  demand 
of  the  debt  for  which  the  same  was  pledged,  or  notice  to  the 
pledgor,  it  was  held,  that  the  measure  of  damages  should  be 
the  highest  market  price  of  the  stocks  between  the  time  of  the 
conversion  and  the  trial."^ 

But  the  pledgee  is  not  bound  to  sell  the  pledged  property 
on  default,  nor  is  he  liable  in  damages  because  the  pledge 
afterwards  depreciates  in  value.  To  protect  himself  against 
depreciation  the  pledgor  should  redeem  and  thereby  be  in  a 
situation  to  dispose  of  it,  at  the  most  favorable  time." 

"^  2  Pars,  on  Con.,  86,  et  seq. 

^  Petty  V.  Overall,  42  Ala.,  145;  Edwards  on  Bailment,  223,  et  seq.;  Story 
on  Bail.,  §  238. 

=^4  Markham  v.  Jaudon,  41  N.  Y.,  235.  See,  also,  Wilson  v.  Little,  1  Sand., 
351 ;  Erie  Bank  v.  Smith,  3  Bew.  (Phel.),  9,  as  to  the  duty  of  such  bailees.  The 
doctrme  of  the  text  (Markham  v.  Jaudon),  is  the  general  doctrine  of  New  York 
and  several  other  states,  incase  not  only  of  the  conversion  of  stocks,  but  of 
other  property.  See,  post,  Chap.  33,  for  an  exposition  of  the  law  of  damages 
in  case  of  conversion. 

=sRozet  V.  McClellan,  48  HI.,  345.  See,  also,, as  to  diligence  required, 
Eice  V.  Benedict,  19  Mich.,  132. 


BAILMENTS.  315 


"What  Pledgee  may  Recover  for  Conversion— Locatio,  or  Hiring  for  Keward. 

§  364.  What  the  Pledgee  may  Recover  for  a  Con- 
version . — In  an  action  brought  by  the  pledgee  against  a  third 
party  who  takes  the  pledge  from  him,  he  may  recover  the  full 
value  of  the  property.  But,  in  an  action  for  the  value  of  the 
property  by  the  pledgee  against  one  who  has  purchased  it  of 
the  pledgor  he  can  recover  only  the  amount  of  his  claim, 
■which  was  secured  by  the  pledge.'^ 

And,  a  pledgor  may  transfer  the  pledged  property  to  another, 
subject  to  the  pledge,  and  the  purchaser,  after  a  tender  of  the 
amount  due  the  pledgee  and  a  demand  of  the  pawn,  may  main- 
tain an  action  therefor,  or  for  its  value,  and  the  measure  of 
damages  would  be  the  same  as  in  other  conversions." 

A  sale  by  a  pledgee,  on  his  own  account,  of  a  stock  note, 
which  he  had  authority  to  "use,  transfer,  or  hypothecate," 
before  the  maturity  of  the  debt,  is  a  conversion,  for  which  an 
action  will  lie.'^  The  right  to  sell  property  is  incident  to  a 
contract  of  pledge,  and  a  part  of  the  security.*^ 

§  365.    Locatio,  or  Hiring  for  Reward. — This,  in  the 

language  of  Cancellor  Kent,  "is  a  contract  by  which  the  use 
of  the  thing,  or  labor  or  service  about  it,  are  stipulated  to  be 
given  for  a  reasonable  consideration." "" 

^  Brownell  v.  Hawkins,  4  Barb.,  491.  See,  also.  Spoor  v.  Holland,  8 
Wend.,  445. 

=7  Franklin  v.  Neale,  13  M.  &  W.,  481.  See,  also,  Whitaker  v.  Sumner, 
9  Pick.,  309;  Bing.  L.  Cas.,  436.  The  measure  of  damages  for  the  conver- 
sion of  property  is  fuUy  treated  elsewhere;  see,  post.  Chap.  33. 

^^  Ogden  V.  Lathrop,  1  Sweeny  (N.  Y.),  643.  So,  a  pledgee  may  tempo- 
rarily loan  to  the  pledgor  the  pledged  property,  for  a  special  purpose,  and 
recover  the  same  in  trover  if  the  property  be  not  returned.  Hutton  v.  Amett, 
51  m.,  193.  See,  also,  Thayer  v.  Dwight,  104  Mass.,  2-54.  A  pledge  of 
chattels  is  usually  effected  by  a  mere  delivery  of  the  chattels;  but  incorpo- 
real property  being  incapable  of  manual  delivery,  cannot  be  pledged  with- 
out a  written  transfer  of  the  title.  Debts,  negotiable  instruments,  stocks  ia 
incorporated  companies,  and  choses  in  action  generally,  are  pledged  lq  the 
latter  way.    Brewser  v.  Hartly,  37  Cal.,  15. 

=9  Alexandria,  etc.,  R.  Co.  v.  Burke,  22  Gratt.  (Va.),  254.  See,  also,  Erie 
Bankv.  Smith,  3  Brew.  Phel.,  9,  as  to  the  duties  and  liabilities  of  bailees. 

3°  2  Kent's  Com.,  585,  586. 


316  THE  LAW  OF  DAMAGES. 


Where  Bailee  is  to  Bestow  Care  or  Labor. 


In  case  of  hiring,  the  bailee  gains  a  special  property  in  the 
thing  hired,  and  in  case  of  a  conversion  by  another  he  may  of 
course  recover  it  or  its  value,  against  any  person  but  the 
owner.  And  he  is  liable  for  any  loss  or  damage  the  property 
may  receive,  if  used  for  other  purposes  than  that  for  which  it 
was  bailed."'  The  bailee  is  responsible  for  the  want  of  ordi- 
nary care;  but  he  is  not  an  insurer  against  inevitable  casualties, 
or  losses  occurring  without  his  fault."" 

In  case  of  a  failure  to  return  property  hired  the  measure  of 
damages  is  the  stipulated  hire  for  the  time  agreed  upon, 
together  with  the  value  of  the  property,  and  interest  upon  the 
whole  amount.  And  a  recital  of  the  value  of  the  property  in 
an  article  of  agreement  in  reference  to  the  bailment  is  not 
conclusive  on  this  question,  though  a  proper  matter  to  be  con- 
sidered by  the  jury." 

Where  a  party  hired  a  slave  for  a  fixed  and  definite  period, 
he  was  held  liable  for  the  entire  amount  for  the  stipulated 
time,  although  the  slave  was  emancipated  during  the  term." 
And  where  a  person  received  a  horse  to  keep  for  its  use,  by 
request  of  the  bailor,  it  was  held,  not  a  gratuitous  loan  about 
which  the  bailee  was  required  to  exercise  extraordinary  care, 
but  a  contract  for  their  mutual  benefit,  and  requiring  only 
ordinary  care." 

§  366.  Where  the  Bailee  is  to  Bestow  Care  or  Labor. 

— This  embraces  that  class  of  bailments: 

1.  Where  mechanics  or  manufacturers  are  employed  to 
manufacture  or  repair  the  article  bailed; 

2.  Where  property  is  delivered  to  warehousemen ; 

3'  Duncan  v.  Rail  R.  Co.,  2  Ricli.,  613;  Mayor  of  Columbus  v.  Howard,  6 
Geo.,  213.  Where  a  horse  dies  while  being  driven  beyond  the  place  specified 
at  the  time  of  hiring,  the  bailee  is  Liable  in  damages  for  its  value,  as  for  a 
conversion.    Fisher  v.  Kyle,  27  Mich.,  454. 

3^  Field  V.  Brackett,  56  Me.,  121. 

33  Negus  V.  Simpson,  99  Mass.,  388. 

3«  Buford  V.  Tucker,  44  Ala.,  89. 

3S  Chamberlain  v.  Cobb,  32  la.,  161. 


BAILMENTS.  317 


"Warehousemen. 


3.  Where  it  is  delivered  bj  guests  to  innkeepers.  In  cases 
under  the  first  of  the  foregoing  classes  the  bailee  is  required 
to  bestow  ordinary  care.  He  has  a  special  property  in  the 
article  bailed,  and  may  maintain  an  action  for  the  taking 
thereof  or  for  an  injury  thereto.  And  if  the  article  perishes 
in  his  hands  without  his  fault,  the  bailor  cannot  recover 
therefor. 

Where  the  manufacturer  fails  to  comply  with  his  contract, 
or  where  there  is  a  material  deviation  from  the  contract,  in  the 
manufacture  of  the  article,  the  bailor  has  one  of  two  remedies; 
he  may  usually  refuse  to  receive  the  article,  and  sue  for  the 
value  of  the  materials  furnished,  or,  he  may  recover  his  dam- 
ao-es  for  the  breach  of  the  contract,  the  measure  of  which 
would  ordinarily  be  the  difference  between  the  actual  value 
of  the  article,  as  it  would  have  been  if  manufactured  accord- 
ino-  to  the  agreement,  and  the  contract  price,  if  the  latter  is 
less  than  the  former;  and  if  the  contract  price  has  been  ad- 
vanced, then  that  sum,  at  least,  should  be  added  to  tlie  amount. 
The  general  rule  applicable  to  the  breach  of  a  contract  to 
deliver  property,  which  we  have  already  considered,  would  be 
here  applicable.'^ 

§  367.  Warehousemen.— These  bailees  are  liable,  only 
for  the  want  of  ordinary  care.  If  goods,  delivered  to  them, 
are  injured  through  the  want  of  this  care,  they  are  liable  to 
the  bailor  for  such  damages  as  may  be  sustained  thereby. 

The  bailee  may  maintain  an  action  for  any  injury  to  the 
property  by  a  third  party,  and  would  be  responsible  for  its 
value,  if  delivered  by  mistake  to  a  wrong  person."  And  the 
measure  of  damages,  in  case  of  a  loss  of  the  property  through 
the  negligence  of  the  bailee,  is  not  necessarily  limited  to  the 
cost  of  the  goods,  or  the  price  for  which  they  are  sold,  but  the 
market  value  may  be  recovered.''     But  if  they  are  taken  from 

36  See,  ante,  Chap.  12. 

87  WilUard  v.  Bridge,  4  Barb.,  361. 

33  Leonard  v.  Dunton,  51  111.,  482. 


318  THE  LAW  OF  DAMAGES. 


Innkeepers— Common  Carriers— Insurers. 


him  by  authority  of  law,  it  is  a  good  defense  to  an  action  by 
the  bailor  for  their  value.'' 

§  368.  Innkeepers.— Innkeepers,  like  common  carriers, 
are  held  to  be  insurers  of  property  committed  to  their  care, 
by  guests,  except  against  losses  occurring  by  act  of  God  or  the 
public  enemy,  or  the  neglect  or  fraud  of  the  owner."  Where 
there  is  a  liability,  the  bailor  may  recover  his  actual  loss  sus- 
tained; and  this  is  not  confined  to  the  cost  of  the  goods." 
And  in  New  York,  where  the  bailor  sued  an  innkeeper  for  the 
loss  of  a  quantity  of  gold  coin,  it  was  held,  that  the  judgment 
should  be  entered  for  coin  and  interest,  and  not  its  equivalent 
in  currency."  Questions  of  contributory  negligence  will  fre- 
quently occur  in  these  cases,  the  general  doctrine  of  which  we 
have  already  considered,  and  which  we  shall  hereafter  consider 
in  connection  with  common  carriers."  The  same  general 
principles  relating  to  damages  are  applicable  in  each  class  of 
bailments. 

§  369.  Common  Carriers— Insurers  .—The  most  impor- 
tant branch  of  the  law  of  bailments,  is  that  which  relates  to 
common  carriers.  Here  the  responsibility  of  the  bailee  is 
that  of  absolute  warranty  against  injury  to,  or  loss  of,  the 
goods,  except  that  accruing  through  the  acts  of  God  or  the 
public  enemies,  or  the  fault  or  fraud  of  the  bailor. 

An  act  of  God  is  construed  to  mean  that  which  operates 
without  the  aid  or  interference  of  man.  ''  Again,  Lord  Mans- 
field, says:  "  The  act  of  God  is  natural  necessity,  as  winds  and 
storms,  which  arise  from  natural  causes  and  is  distinct  from 


39  Burton  v.  Wilkinson,  18  Vt.,  186. 
*°  2  Parsons  on  Con.,  146,  et  seq. 
4'  Needles  v.  Howard,  1  E.  D.  S.,  (N.  Y.),  54. 
*»  Kellogg  V.  Sweeney,  46  N.  Y.,  291. 
«  See,  post,  §373. 

44  1  Roll.  Ab.  (c),  pi.,  4;  Co.  Lit.,  89;  Strohan  v.  Detroit,  etc.,  R.  Co.,  23 
Wis.,  126, 


BAILMEKTS.  319 


Rule  not  Applied  to  Live  Stoclc— Interruption  of  Navigation. 


inevitable  accident.""  Again,  the  act  of  God  which  excuses 
the  common  carrier  must,  it  has  been  said,  be  at  once  the  prox- 
imate and  sole  cause  of  the  loss." 

§  370 .  The  Rule  not  Applied  to  Live  Stock.— The  rule 
of  strict  liability  is  not  applied  in  its  full  extent  to  the  car- 
riage of  live  stock.  In  the  transportation  of  such,  in  the 
absence  of  negligence,  the  carrier  is  relieved  from  responsi- 
bility for  such  injuries  as  occur  in  consequence  of  the  vitality 
of  the  freight;''  and  from  such  injuries  as  arise  from  their 
nature  and  propensities  and  which  could  not  be  prevented  by 
foresight,  vigilance  and  care." 

But  a  common  carrier  was  not  permitted  to  show,  in  defense 
of  an  action  for  a  loss,  as  the  act  of  a  public  enemy,  a  destruc- 
tion of  the  property  by  a  provo-marshal  of  the  Confederate 
Government,  which  government  and  authority  the  carrier  had 
recognized." 

§  371.  Interruption  of  Navigation.— So,  the  danger  of 
interruption  of  navigation  may  enter  into  and  become  a  part 
of  the  contract.  Thus,  where  a  boat  took  freight  at  Dubuque, 
Iowa,  in  November,  to  transport  to  St.  Paul;  it  was  held,  that 
the  carrier  was  bound  to  transport  it;  but,  under  the  circum- 
stances, was  not  bound  to  transport  it  during  the  same  season; 

«  The  Prop.,  etc.,  v.  Wood,  4  Doug.,  287;  s.  c,  3  Esp.  N.  P.  R.,  127. 

<«  Smith  V.  Slieppard,  Abb.  on  Ship.,  251,  et  seq. 

*7  Cragin  V.  N.  Y.  Cent.,  R.  Co.,  51  N.  Y.,  61.  See,  also,  Pennsylvania, 
etc.,  R.  Co.  V.  Buflfalo,  etc.,  R.  Co.,  49  N.  Y.,  204. 

48  Angel  on  Car.,  §  214;  Clark  v.  Rochester,  etc.,  R.  Co.,  14  N.  Y.,  570; 
BisseU  V.  N.  Y.  Cent.  R.  Co.,  25  N.  Y.,  442;  Smith  v.  New  Haven,  R.  Co., 
12  AUen  (Mass.),  531;  Mchigan,  etc.,  R.  Co.  v.  McDonough,  21  Mich.,  165. 
See,  also,  Boyce  v.  Anderson,  2  Pet.  (U.  S.),  150,  where  Marshall,  C.  J., 
held,  that  the  general  doctrine  of  habihty  of  common  carriers  did  not  apply 
to  the  carriage  of  slaves. 

«  Patterson  v.  N.  C.  R.  Co.,  64  N.  C.  147.  A  loss  by  theft  or  an  irresist- 
ible mob  wiU  not  excuse.  Lewis  v.  Ludwick,  6  Coldw.  (Tenn.),  368.  See, 
also,  Wallace  v.  Clayton,  42  Geo.,  443;  Wallace  v.  Saunders,  42  Geo.,  486; 
Spaid  v.  New  York,  etc.,  Steam  Ship  Co.,  3  Daly,  139;  lU.  Cent.  R.  Co.  v. 
McClellan,  54  111.,  58. 


320  THE  LAW  OF  DAMAGES. 

Where  Negligence  of  Carrier  Co-operates  with  Natural  Causes. 

and  that  if  navigation  became  impracticable  in  consequence 
of  the  cold  and,  storms,  or  of  ice,  the  boat  is  excused  from 
fulfilling  the  contract,  either  on  the  ground  of  the  act  of  the 
higher  power,  or,  because  of  the  contract  and  the  contingen- 
cies, which  may  well  be  considered  to  have  entered  into  the 
contemplation  and  foresight  of  the  parties;  or,  as  within  the 
clause  of  the  contract,  excepting  the  unavoidable  dangers  of 
the  river.  And  that,  under  one  or  the  other  of  these,  the  boat 
had  a  right  to  stop  and  turn  about  on  the  voyage,  if  it 
became  impracticable."" 

And,  where  goods  received  by  a  carrier  were  apparently  in 
good  condition,  but,  subsequently  to  the  delivery,  it  was  dis- 
covered that  they  had  been  injured  while  in  the  charge  of  a 
former  carrier;  it  was  held,  that  the  last  carrier  was  not  liable 
for  the  injury  received  while  being  transported  by  the  former 
carrier  with  whom  he  had  no  connection." 

§  372.  Where  the  Negligence  of  the  Carrier  co-ope- 
rates with  the  Natural  Cause.— Again  it  has  been  held, 
that  the  act  of  God,  which  excuses  the  carrier,  must  be  the 
proximate  and  sole  cause  of  the  loss."^  And  if  the  negligence 
of  the  carrier  co-operates  with  the  natural  cause,  he  is  liable 
for  the  loss."  But,  he  is  not  liable  for  losses  occurring  through 
natural  decay  or  inherent  defects."*  Nor  is  he  liable  where 
the  owner  or  shipper  has  been  guilty  of  negligence  in  not  dis- 
closing the  nature  and  character  of  goods  requiring  peculiar 
care;  nor  would  he  be  liable  on  general  principles  for  the  neg- 


s°  West  V.  The  Steamboat,  Berlin,  3  la.,  532.  See,  also,  2  Pars,  on  Con., 
161;  Wine  v.  Tlie  lU.  Cent.  R.  Co.,  31  la.,  583;  Angel  v.  Tlie  M.  &  M.  R. 
Co.,  18  la.,  555;  Hohannan  v.  Hammond,  42  Cal.,  227. 

s'  Carson  v.  Harris,  4  G.  Greene,  (la.),  516;  West  v.  Steamboat  Berlin, 
SKpra. 

5==  Smith  V.  Shepard,  Abb.  on  Ship.,  383,  5  Am.  ed. 

53  Parsons  v.  Hardy,  14  Wend.,  215. 

54  Clark  v.  Barnwell,  12  How.,  272;  2  Pars,  on  Con.,  162. 


BAILMENTS.  321 


Doctrine  of  Contributory  Negligence— Application. 


ligence  or  fraud  of  the  owner,  which  caused  or  contributed 
materially  to  the  loss." 

And  in  case  of  an  explosion  of  a  boiler  to  a  steamboat, 
whereby  loss  or  injury  to  merchandise  occurs,  the  carrier  is 
bound  to  show,  in  order  to  avoid  liability,  that  the  accident 
occurred  from  causes  which  human  skill  and  foresight  in  the 
construction  %nd  management  of  the  machinery,  could  not 
have  prevented."'  The  carrier  must  be  free  from  fault,  mate- 
rially contributing  to  the  loss."  But  he  would  not,  as  we  have 
observed,  be  responsible  for  injuries  to  animals,  which  could 
not  be  guarded  against,  or  prevented  by  the  reasonable  dili- 
gence of  the  carrier."'  The  same  principles  would  apply  to 
railroad,  stage  coach,  and  steamboat  carriers. 

§373.  Doctrine  of  Contributory  Negligence— Appli- 
cation-— In  an  action  against  a  common  carrier,  to  recover 
damages  for  fruit  trees  missent,  and  injured  thereby;  it  was 
held,  that  the  plaintiff  was  guilty  of  contributory  negligence, 
in  marking  the  trees  "luka  Iowa,"  without  designating  the 
county,  there  being  two  places  of  that  name  in  Iowa,  in  dif- 
ferent counties;  and  the  trees  were  sent  to  the  place  of  that 
name,  not  designed  by  the  bailor."' 

So,  where  a  common  carrier  has  fixed  a  tariff  of  charges  for 
transporting  gold;  and  a  passenger  surreptitiously  introduces 
gold  into  the  carrier's  vehicle,  intending  to  avoid  payment 
for  its  transportation,  he  is  guilty  of  gross  fraud,  and  he  can- 
not recover  in  case  of  loss.  But  if  the  carrier  knew  that  the 
package  contained  gold,  and  did  not  exact  of  the  passenger 
the  usual  rates  for  its  transportation,  but  merely  such  as  were 

ss  Edwards  v.  Slien-att.  1  East.,  604;  Ralson  v.  Donnovan,  4  B.  &  A.,  21; 
Rixford  V.  Smith,  52  N.  H.,  355. 

56  Caldwell  v.  New  Jersey  Steamboat  Co.,  47  N.  Y.,  282. 

57  Railroad  Co.  v.  Raves,  10  Wall.,  176;  Dunson  v.  N.  Y.  Cent.  R.  Co.,  3 
Lan.  (N.  Y.),  265. 

53  Penn.,  etc.,  R.  Co.  v.  Buffalo,  etc.,  Co.,  49  N.  Y.,  204;  See,  also,  Cragin 
V.  N.  Y.  Cent.  R.  Co.,  51  N.  Y.,  61;  Reed  v.  Phil.  R.  Co.,  3Houst.  (Del.),  176. 
59  Conger  v.  Chicago,  etc.,  R.  Co.,  24  Wis.,  157. 
21 


322  THE  LAW  OF  DAMAGES. 


Non-Delivery— Measure  of  Damages. 


chargeable  for  ordinary  extra  baggage,  he  is  not  thereby  de- 
frauded, and  is  liable  in  case  of  loss,  for  the  whole  value." 

§  374.     Non-Delivery—  Measure  of  Damages.  —  The 

general  rule  of  damages  in  an  action  against  a  common  car- 
rier, where  he  is  liable  for  a  loss,  or  for  a  non-delivery  of  any 
portion  of  the  goods  which  he  undertook  to  deliver,  is  the 
value  of  the  goods,  at  the  time  and  place  where  they  should 
have  been  delivered,  with  interest,  less  the  proper  charges  of 
transportation."^ 

Compensation  for  the  actual  loss,  which  is  the  natural  and 
proximate  consequence  of  the  act,  and  excluding  speculative 
profits  and  remote  and  indirect  losses,  is  the  fundamental 
principle  in  such  cases."'  And,  the  measure  of  damages  on 
coin  shipj)ed  to  this  country,  where  there  is  a  ftiilure  to  deliver 
is  the  market  value  of  the  coin  in  our  currency,  at  the  time 
it  should  have  been  delivered,  deducting  the  freight."  But 
anticipated  and  speculative  profits,  are  not  generally  allowed 


as  damages." 


«'  Hellman  v.  HaUaday,  1  Wolw.,  U.  S.  C.  C,  365. 

6^  Sturgess  v.  Bissell,  46  N.  Y.,  462;  Sherman  v.  Wells,  28  Barb.,  (N.  Y.), 
403;  Spring  v.  Haskell,  4  Allen,  112;  McGregor  v.  Kilgore,  6  Ohio,  358;  Lau- 
rent V.  Vaughn,  30  Vt.,  90;  Taylor  v.  Collier,  26  Geo.,  122;  Davis  v.  N.  Y., 
etc.,  R.  Co.,  1  Hilt.,  (N.  Y.j,  543;  Perkins  v.  Portland,  etc.,  R.  Co.,  47  Me., 
573. 

63  Medbury  v.  The  N.  Y.  etc.,  R.  Co.,  26  Barb.,  564.  See,  also.  Rice  v. 
Ontario  Steamboat  Co.,  56  Barb.,  384;  Cooper  v.  Young,  22  Geo.,  269. 

64  The  Patrick  Henry,  1  Bene.,  292.  See,  also.  King  v.  Shepherd,  3  Story, 
249;  Gushing  v.  "Wells,  Fargo  &  Co.,  98  Mass,  550,  where  on  a  failure  to  de- 
liver double  eagles  of  U.  S.  Coinage,  the  measure  of  damages  was  held  to 
be  their  value  in  legal  tender  notes  at  the  time  and  place  they  should  have 
been  delivered,  with  interest  from  the  time  of  making  the  demand.  During 
the  RebelUon,  "gold  coin"  was  an  article  of  merchandise,  "within  the 
meaning  of  the  acts  of  Congress  of  July  13,  1861.  and  May  20,1862,  (12 
Stat,  at  large,  255,  404),  prohibiting  the  taking  of  goods,  wares  and  mer- 
chandise to  an  insurrectionary  district."  Gray's  Gold,  13  Wall.,  358; 
Vaughn  &  Telegraph,  14  Wall.,  258.  But  see  Kellogg  v.  Sweeney,  46  N. 
Y.  291. 

65  Bazm  v.  Steamship  Co.,  3  WaU.  Jr.,  229. 


BAILMEN"TS.  323 


Delay  in  Delivery. 


§  375.  Delay  in  the  Delivery.— In  ease  of  a  delay  in 
the  transportation  of  merchandise  beyond  the  time  stipulated, 
or,  if  there  is  no  stipulation,  beyond  a  reasonable  time  for 
the  transportation  and  delivery  of  the  same,  the  damages 
would  be  the  direct  and  actual  losses  sustained  thereby,  such 
as  the  decline  in  value  of  the  property.  The  difference  be- 
tween the  value  of  the  property  at  the  time  when  and  the  place 
where  it  should  have  been  delivered,  and  its  value  when  it  was 
delivered,  if  it  has  declined  in  value,  would  be  the  proper  mode 
of  estimating  the  damages,  unless  the  delay  was  inevitable, 
as  where  it  was  caused  by  the  act  of  God  or  the  public 
enemy.  From  this  amount  it  would,  howev^er,  be  proper  to 
deduct  the  freight,  where  that  had  not  been  paid." 

But  we  have  noticed  a  larger  liability,  where  the  parties  at 
the  time  of  the  making  of  the  contract,  contemplated,  or  had 
reason  to  contemplate  particular  losses,  and  more  remote 
damages  from  the  delay. 

Thus,  the  carrier  may  be  liable  for  profits  lost  in  conse- 
quence of  an  unnecessary  delay  in  transporting  and  deliver- 
ing merchandise,  where  it  has  been  sent  for  some   particular 

«7  Sisson  V.  The  Cleveland  etc.,  R.  Co..  14  iMicli.,  489;  Peet  v.  Chicago  & 
N.  W.  R.  Co.,  20  Wis.,  594;  Weston  v.  Grand  T.  R.  Co.,  54  Me.,  376;  Kent 
V.  Hudson  R.  R.  Co.,  22  Barb.,  278;  Baggs  v.  N.  Y.  C.  R.  Co.,  28  Id.,  515; 
Jones  V.  N.  Y.  C.  R.  Co.,  29  Id.,  633;  Ward  v.  N.  Y.  C.  R.  Co.,  47  N.  Y., 
29;  Rowev.  The  Steamer  City  of  Dublin,  1  Bene.,  46.  Loss  by  pirates  is 
regarded  as  aloss  by  the  public  enemy.  Magellan  Pirate?,  25  Eng.  L.  &  E., 
595,  s.  c.  18  Jur..  18;  Smith  v.  Griffith,  3  Hill.,  333;  Wilson  v.  The  Lan- 
cashire, etc.,  R.  Co.,  30  L.  J.,  C.  P.  (N.  S.),  232;  Ingledew  v.  Northern  R. 
Co.,  7  Gray  (Mass.),  86;  Cutting  v.  Grand  Tnmk  R.  Co.,  13  Allen  (Mass.), 
881;  Scott  V.  Boston  &  N.  0.  Steamship  Co.,  106  Mass.,  468;  Kingv.  Wood- 
bridge,  34  Yt.,  565;  Deming V.  Grand  Trunk  R.  Co.,  48  N.  H.,  455;  Whalon 
V.  Aldrich,  8  Jlinn.,  346;  Cooper  v.  Young,  22  Geo.,  269,  where  the  profits 
of  a  business  lost  were  not  allowed.  See,  also,  Davis  v.  Cin.  H.  &  D.  R. 
Co.,  1  Dis.,  23.  But  see  Wibert  v.  The  N.  Y.  &  E.  R.  Co.,  19  Barb..  86; 
Jones  V.  N.  Y.  &  E.  R.  Co.,  29  Barb.,  633;  Kirtland  v.  Leary,  2  Sweeney, 
(N.  Y.),  677;  Wardv.  N.  Y.  Cent.  R.  Co.,  47  N.  Y.,  29;  CoUard  v.  S.  E. 
Railway  Co.,  7  H.  &  N.  79;  Wilson  v.  Lancashire,  etc.,  R.  Co.,  99  E.  C.  L., 
632;  same  v.  New  Castle,  etc.,  R.  Co.,  18  E.  L.  &  E.,  557.  The  undertakmg 
to  cany,  implies  that  it  shall  be  done  in  a  reasonable  time.  See  above 
authorities. 


324  THE  LAW  OF  DAMAGES. 


Liability  Beyond  the  Terminus. 


puq^ose;  or  the  value  of  tlie  use  of  machinery,  and  expenses 
of  persons  employed  to  put  up  and  operate  the  same;  or  the 
loss  of  a  crop  of  grain  in  consequence  of  such  delay  of  the 
machinery  where  the  carrier  had  reason  to  contemplate  at  the 
time  of  receiving  the  property,  that  such  losses  would  prob- 
ably occur  from  such  delay/" 

§  370.  Liability  Beyond  the  Terminus.— Where  goods 
are  received  by  a  carrier  for  a  certain  destination,  beyond  the 
terminus  of  his  road,  is  he  responsible  for  the  carriage  of  the 
goods  for  the  entire  route?  The  general  doctrine  in  England 
makes  the  carrier  liable,  in  such  cases,  for  the  safe  delivery  of 
the  goods  at  the  place  of  destination;'"  but  in  this  country, 
the  decisions  have  been  conflicting.  The  decisions  generally 
turn  upon  the  question  of  the  intention  of  the  parties,  the 
custom  of  the  business,  and  the  construction  to  be  placed 
upon  the  contract  as  derived  from  the  circumstances.  In 
England,  the  acceptance  of  the  goods  to  be  transported 
to  the  place  of  destination,  even  in  the  absence  of  any  ex- 
press agreement,  is  considered  an  undertaking  to  deliver 
them  there,  and  the  first  carrier  is  liable,  wherever  the  loss 
occurs;  and,  in  this  country,  there  seems  to  be  a  tendency  of 
the  courts  to  construe  the  undertaking  of  the  carrier  the  same 
way.  And  if  a  carrier  receives  goods  marked  and  directed  to 
a  particular  place  beyond  the  terminus  of  his  route,  this  has 
been  held  to  be  a  prima  facie  undertaking  to  deliver  them 
according  to  the  marks  and  directions." 

^  See,  ante,  §  252,  et  seq.;  Caledonian  R.  Co.  v.  Cole,  3  L.  T.,  252.  Also, 
see,  post,  §384,  Priestly  v.  Northern  Ind.,  etc.,  R.  Co.,  26  111.,  205. 

7°  Muscliamp  v.  Lancaster,  etc.,  R.  15  Jur.,  448;  s.  c.  3  E.  L.  &  E.,  497; 
Scotthorn  v.  S.  S.  R.  Co.,  8  Exch.,  341,  s.  c,  18,  E.  L.  &  E.,  553;  Wilson  v. 
York,  etc.,  R.  Co.,  18  E.  L.  &  E.,  557;  Crouch  v.  London,  etc.,  R.,  14  C.  B., 
255;  s.  c,  25,  Eng.,  E.  &  E.,  287. 

7'  Angel  V.  M.  &  M.  R.  R.  Co.,  9  la.,  487;  Porter  v.  Cliicago  &  X.  W. 
R.  Co.,  20  la.,  73;  Nashua  Lock  Co.  v.  Worcester,  etc.,  R.  Co.,  48  N.  H., 
339;  2  Pars,  on  Con.,  212,  et  seq. 

The  current  of  decisions  in  Connecticut  seem  to  be  adverse  to  this  doctrine. 
Hood  V.  N.  Y.  &  N.  H.  R.  Co.,  22  Conn.,  1;  Elmore  v.  The  Naugatuck  R.  Co., 


BAILMENTS.  325 


Liability  Beyond  the  Terminus. 


Of  course,  it  is  competent  for  the  carrier  by  express  contract 
to  deliver  goods  beyond  the  terminus  of  his  route;  and  where 
different  roads  are  united  in  one  continuous  route,  and  goods 
are  received  to  be  sent  to  some  point  on  a  connecting  road, 
this  is  generally  considered  an  undertaking  to  deliver  them 
at  the  latter  place." 

But  the  rule  supported  by  the  preponderance  of  American 
authority,  seems  to  be,  that  where  goods  are  delivered  to  a 
carrier,  marked  and  directed  to  a  particular  place  beyond  the 
terminus  of  his  road,  and  there  is  no  contract  to  deliver  at  the 
place  of  destination,  except  such  as  may  be  inferred  from  the 
circumstances,    the  carrier   is   only  bound  to  transport  and 

23  Conn.,  457;  TheNaugatuck  R.  Co.  v.  The  Button  Co.,  24  Conn.,  468.  But 
see,  Converse  v.  The  Norwich,  etc.,  R.  Co.,  33  Conn.,  166.  See,  also.  Lock  Co. 
V.  Worcester,  etc.,  R.  Co.,  supra.  The  doctrine,  that  where  goods  are 
received  by  a  common  carrier,  marked,  or  otherwise  directed  to  a  place 
beyond  the  terminus  of  the  carrier's  line,  is  prima  facie  evidence  of  a 
contract  to  transport  the  goods  to  their  final  destination,  though  the  freight 
money  is  not  paid  in  advance,  is  sustained  by  the  following  cases.  Tliis  is 
the  English  doctrine,  even  though  the  original  carrier  is  not  shown  to  have 
any  connection  in  business,  with  other  carriers  beyond  his  own  line. 

Muschamp  v.  The  Lancaster,  etc.,  R.  Co.,  8  M.  &  W.,  421 ;  Watson  v.  The 
Ambergate,  etc.,  R.  Co.,  3  L.  &  E.,  497;  Collins  v.  The  Bristol,  etc.,  R.  Co., 
11  Exch.,  790,  s.  c.  H.  L.  Cas.,  194;  Coxon  v.  The  Great  West.  R.,  5  H.  & 
M.,  274;  2  Red.  on  Rail.  W.,  104,  et  seq.  For  further  American  cases,  sus- 
taining the  same  doctrine,  see.  Foy  v.  The  Troy,  etc.,  R.  Co.,  24  Barb.,  382; 
Schrodder  v.  The  Hudson  R.  R.  Co.,  5  Duer,  55;  Cent.  R.  Co.  v.  Copeland, 

24  lU.,  332.  But  where  a  receipt  given  for  goods  to  be  transported 
beyond  the  terminus  of  the  defendant's  railroad,  provided  that  the  rail- 
road company  should  not  be  responsible  beyond  the  limits  of  their  own 
road,  it  was  held,  that  the  carrier  might  thus  limit  his  responsibility. 
The  Detroit,  etc.,  R.  Co.  v.  The  F.  &  M.  Bank,  20  Wis.,  122.  See, 
also,  Angel  v.  The  Miss.,   etc.,  R.  Co.,  supra;  St.  John  v.  Van  Santvoort, 

25  Wend.,  660.  So,  where  the  carrier  receives  full  freight  for  the  whole  dis- 
tance and  gives  a  receipt  therefor,  the  liabdity  continues  the  whole  distance. 
Choteauxv.  Leach,  18 Pa.  St.,  224.  See,  also,  Baltimore,  etc.,  Co.  v.  Brown, 
54  Pa.  St.,  77;  Candee  v.  Pennsylvania,  etc.,  R.,  21  Wis.,  582;  Redfield  on 
Railways,  109;  East  Tenn.,  etc.,  R.  Co.,  v.  Rogers,  6  Heisk.,  143;  Western, 
etc.,  R.  Co.  V.  McElwee,  Id.,  208;  Louisville,  etc.,  R.  Co.  v.  Campbell,  7 
Heisk.,  253.  (1871). 

7^  Noyes  v.  Rutland,  etc.,  R.  Co.,  27  Vt.,  110;  Wilcox  v.  Parmelee,  3 
Sand.,  610;  Red.  on  Bail.,  §  183. 


526  THE  LAW  OF  DAMAGES. 


Liability  Beyond  the  Terminus. 


deliver  tliem  as  required  by  the  established  usages  of  the 
business." 

But  we  have  already  given  more  attention  to  this  subject 
than  required  by  the  character  of  this  treatise,  and  the 
inquirer  is  referred  to  those  especially  devoted  to  it. 

It  is  hardly  necessary  to  say,  that  the  measure  of  damages 
for  loss,  injury,  delay,  or  failure  to  deliver  the  goods  at  a  place 
beyond  the  road  of  the  carrier  who  receives  them,  in  case  of  his 
liability  therefor,  would  be  the  same  as  if  they  were  to  be  deliv- 
ered at  some  place  on  the  line  of  his  road.  But  there  is,  perhaps, 
one  qualification  to  the  general  rule,  which  may  be  applicable 
in  either  case,  and  that  is,  that  where  goods  are  lost  before 
shipment,  and  at  the  place  of  shipment,  the  measure  of  dam- 
ages is  their  value  at  that  place,  and  not  at  the  place  of 
destination.'^ 


73  Am.  L.  R.,  Vol.  4,  p.  2o8,  note,  where  may  be  found  a  review  of  the 
cases.  See,  also,  2  Pars,  on  Con.,  213;  Van  Santvoort  v.  St.  John,  25  Wend., 
669;  s.  c,  6  Hill,  157;  Farmers',  etc.,  Bank  v.  Champ,  Trans.  Co.,  18  Vt,, 
140;  23  Vt.,  209;  Edwards  on  BaU.,  528. 

74Lakeman  v.  Grinnell,  5  Bosw.  (N,  Y.),  625.  But  under  special 
circumstances  and  a  loss  in  the  port  of  shipment,  it  was  held  proper 
to  allow  the  value  of  the  property  at  the  place  of  destination;  the  injured 
goods,  without  notice  to  the  shipper,  having  after  injury  been  sold  by  the 
carrier  at  the  port  of  shipment.  The  Joshua  Baker,  1  Abb.  Adm..  215,  See, 
also.  The  Gold  Hunter,  1  Blatch.  &  H.,  30,  in  support  of  the  general  rule. 
Where  a  carrier  who  receives  goods  for  transportation,  addressed  to  a  place 
on  the  line  of  a  connecting  carrier,  and  charges  and  receives  a  price  for  the 
entire  distance,  he  contracts  that  the  goods  shall  be  carried  through  for  the 
price  paid,  and  is  bound  for  the  risks  of  a  common  carrier  to  the  place  of 
destination.  Condict  v.  Grand  Trunk  Railway,  4  Lans.  (N,  Y,),  106.  And 
where  a  carrier  conveys  goods  over  a  portion  of  the  route  between  the  points 
of  shipment  and  consignment  and  holds  them  for  delivery  to  some  connect- 
ing carrier,  the  liability  of  the  former  in  respect  to  such  goods  does  not 
thereby  cease,  but  continues  until  the  latter  has  had  a  reasonable  time  to  take 
them  away.  Wood  v.  Milwaukee,  etc.,  R.  Co.,  27  Wis.,  541  (1871).  As  to 
the  joint  liability  of  a  continuous  line  of  earners,  each  operating  his  O'svn 
section  separately,  but  all  sharing  profits,  see.  Barter  v.  AVheeler,  49  N. 
H.,  9;  Parmelee  v.  Western  Trans.  Co.,  26  Wis.,  439  (1871).  The  earner,  in 
whose  possession  they  are  when  destroyed,  is  liable  in  all  cases  to  the  owner. 
Conkey  v.  Milwaukee,  etc.,  R.  Co.,  31  Wis.,  619. 


BAILME]NTS.  327 


Market  Value. 


The  actual  damage  in  that  case  would  only  be  the  value 
there,  if  the  shipper  had  due  notice  thereof,  as  with  this  value 
like  goods  could  be  purchased  and  shipped  to  the  place  of 
destination,  and  the  owner  would  ordinarily  be  indemnified  by 
the  market  value  at  the  place  of  shipment. 

§  377.  3Iarket  Value. — The  same  general  principles,  as 
to  market  value,  apply  here,  which  we  have  observed  as 
applicable  in  the  case  of  a  breach  of  contract  to  deliver  goods 
sold.'^  And  when  the  goods  have  no  market  value  at  the 
place  of  destination,  the  value  may  be  ascertained  by  adding 
to  the  price  at  the  place  of  manufacture  or  shipment,  or  place 
where  the  value  is  known,  the  cost  of  transportation  to 
the  place  of  destination,  and  a  reasonable  profit."  The  value 
must  be  based  on  evidence,  and  cannot  be  assessed  on  mere 
conjecture.'^ 

But,  it  has  been  held,  that  the  legal  presumption,  in  the 
absence  of  proof  of  the  actual  value  of  the  goods  at  the  place 
of  destination,  is,  that  their  value  there  is  as  much  at  least  as 
at  the  place  of  shipment,  and  that  if  there  is  proof  of  the 
value  at  the  place  of  shipment,  the  defendant  cannot,  under 
such  circumstances,  justly  complain  of  an  estimate  based  on 
that  value.'''  And  where  the  only  evidence  of  the  value  of  the 
goods  was  the  price  stated  in  the  bill  made  out  at  the  time 
they  were  bought,  it  was  held,  that  the  jury  should  have  been 
limited  in  assessing  damages  to  the  price  stated  in  the  bill. 


7^  See,  ante,  §  264,  et  seq. 

77  Rice  V.  The  Ontario  Steamboat  Co.,  56  Barb..  384;  Bridgman  v.  The 
Steamboat  Emily,  18  Iowa,  509;  Harris  v.  Panama  R.  Co.,  5  Bostv.  (X. 
Y.),  312. 

78  Traloff  V.  The  N.  Y.  Cent.  &  Hudson  R.  Co.,  10  Blatch.  C.  C.  R.,  16. 

79  Rome  R.  Co.  v.  Sloan,  39  Ga..  636.  And  where  by  the  acts  of  the  car- 
rier the  owner  is  prevented  from  examining  the  goods  and  showing  their 
actual  quality,  the  jury  may  infer  that  they  were  the  best  quality  of  the  kind 
or  species.    Bailey  v.  Shaw,  24  N.  H.,  297. 


328  THE  LAW  OF  DAMAGES. 

Partial  Loss  or  Injury. 

with  interest  thereon  from  the  time  of  the  loss  till  the  time  of 
the  trial/" 

So,  in  case  of  a  failure  to  carry,  where  it  was  shown  that 
the  article  could  not  be  purchased  at  the  place  of  destination, 
and  the  carrier  had  the  exclusive  right  of  transportation,  by 
the  cheapest  mode,  it  was  held  proper  to  consider  the  difler- 
ence  between  the  price  agreed  on,  or  usual  by  that  mode,  and 
the  terms  on  which  other  j^arties  would  carry  it  by  other 
modes;  and  the  court  suggested  that  it  might  not  be  improper 
to  admit  additional  evidence  of  loss,  by  the  expense  of  hands, 
etc.,  during  the  necessary  delay  and  suspension  of  business, 
occasioned  by  the  default  of  the  carrier,  for  the  period  during 
which  the  plaintiff,  by  ordinary  diligence  could  not  supply 
himself  by  other  means  with  the  article  agreed  to  be  carried.*' 

§  378.  Partial  Loss,  or  Injury.— Where  goods  have 
been  damaged  in  the  course  of  transportation  through  the 
fault  of  the  carrier,  the  rule  of  damages  is  the  difference 
between  the  value  of  the  goods  as  they  are,  and  the  value  as 
they  should  have  been,  at  the  time  and  place  where  they  were 
to  be  delivered  according  to  the  contract,  and  to  which  interest 
is  usually  allowed  to  be  added;  but  from  which  the  freight 
should  be  deducted  where  it  has  not  been  advanced.'"' 

But,  it  has  been  also  held,  that  where  the  merchandise, 
thus  injured  by  the  carrier,  had  been  repaired  or  placed  in 
a  suitable  condition  for  sale  by  the  owner,  after  its  arrival  at  the 
place  of  destination,  he  could  only  recover  for  his  time  and 
expenses  thus  incurred,  besides  the  difference  in  value  of  the 
merchandise  after  the  care  and  labor  thus  bestowed,  and  what 

^  Blumenthall  v.  Brainard,  38  Vt.,  402.  And  the  receipt  of  the  carrier  for 
the  goods  is  prima  facie,  but  not  conclusive,  evidence  of  their  value.  Porter 
V.  The  Chic.  N.  W.  R.  Co.,  20  Iowa,  73. 

«'  Cooper  V.  Young,  22  Ga.,  269. 

^^  Henderson  v.  Maid  of  Orleans,  12  La.  An.,  352.  See,  also,  Lewis  v.  Ship 
Success,  18  La.  An.,  1;  Black  v.  Camden,  etc.,  R.  Co.,  45  Barb.  (N.  Y.),  40; 
McGregor  v.  Kilgore,  6  Ohio  358.    The  Columbus,  Abb.  Adm.,  97. 


BAILMENTS.  329 


Sale  of  Goods -Interest  as  Damages— Where  Canier  Eefuses  to  Keceive,  etc. 

it  would  have  been  worth  at  the  place  of  consignment  without 
the  injury,  as  this  would  be  just  to  the  carrier  and  afford  the 
owner  a  proper  indemnity.*^ 

§  379.  Sale  of  the  Goods.— The  amount  realized  on  a  sale 
of  damaged  goods  at  auction,  where  the  same  is  fairly  con- 
ducted, is  presumed  to  be  the  value  of  the  goods,  at  the  time, 
in  the  damaged  state." 

Kor  is  the  carrier  entitled  to  any  deduction  on  account  of 
the  goods  being  insured  by  the  owner.**  But  where  a  carrier 
having  received  instructions  to  deliver  cotton  at  Norfolk,  to  a 
factor  who  had  been  directed  to  hold  it  until  further  orders, 
but  instead  thereof  delivered  it  to  a  factor  at  Petersburg!!,  who 
having  no  instructions  about  it  sold  it  immediately,  and  cotton 
rose  rapidly  and  steadily  after  the  sale,  the  carrier  was  held 
liable  for  the  highest  price  the  cotton  would  have  realized  at 
any  time  before  the  suit  was  brought  therefor,  the  suit  having 
been  brought  within  a  reasonable  time."  The  general  prin- 
ciples of  damages  in  case  of  a  conversion  would  here  apply. 

§  380.  Interest  as  Damages.— It  may  be  observed  that 
interest  is  now  generally  allowed  on  the  amount  of  loss  sus- 
tained by  a  breach  of  such  contracts  as  well  as  in  cases  of  torts, 
but  we  shall  hereafter  consider  the  subject  of  interest  more 
fully  as  an  element  of  damages.*' 

§381.  Where  the  Carrier  Refuses  to  Receive  and 
Transport  according  to  Contract  .—The  damages  for  a 
refusal  to  carry  goods  contracted  to  be  carried,  where  the 
bailor  is  unable  to  procure  other  means  of  transportation, 

84  Winne  v.  111.  Cent.  R.  Co.,  31  la.,  583. 

85  The  Columbus,  1  Abb.  Adm.,  95. 

86  Merich  v.  Brainard,  38  Barb.  (N.  Y.),  574;  s.  c,  34  N.  Y.,  208,  where 
tlie  judgment  was  modified  on  other  grounds. 

87  Arlington  v.  Wilmington  R.  Co.,  6  Jones  (N.  C.  L.),  68. 

88  Cowley  Y.  Davidson.  13  Minn.,  92;  Underwood  v.  111.  Cent.  R.  Co.,  1  Bis- 
sell,  403;  Mote  v.  C.  &  N.  W.  R.  Co.,  27  la.,  22;  Fraloff  v.  The  N.  Y.  Cent. 
R.  Co.,  10  Blatch.  (C.  C.  R.},  16;  Wolfe  v.  Lacy,  30  Tex.,  349. 


330  THE  LAW  OF  DAMAGES. 


Where  the  Carrier  Refuses  to  Eeceive  and  Transport  According  to  Contract. 


would  ordinarily  be  the  difference  in  the  value  of  the  article 
at  the  place  from  whence  it  was  to  be  carried,  and  the  place 
where  it  was  to  be  delivered,  less  the  freight  for  carriage.'' 

But  on  general  principles,  as  we  shall  hereafter  notice,  it 
would  be  the  duty  of  a  party  under  such  circumstances  to  use 
reasonable  means  to  prevent  loss,  and  secure  the  transporta- 
tion of  the  merchandise,  after  the  failure  of  the  defendant  to 
receive  and  transport  it;  and  where  he  might  have  secured  the 
transportation  without  delay,  the  damages  would  be  only  the 
difference  between  the  price  paid  for  the  transportation  and 
that  contracted  to  be  j)aid  therefor;  to  which  might  be  added 
the  amount  of  any  necessary  expenses  incurred  by  reason  of 
the  carrier's  failure,  and  the  value  of  time  spent  in  making  a 
new  contract.  Thus,  where  the  defendant  refused  to  perform 
an  ao-reement  to  transport  corn  at  a  certain  price,  in  an  action 
for  damages  for  the  failure,  the  plaintiff  was  held  entitled  to 
recover  the  difference  between  the  contract  price  and  what  he 
would  be  compelled  to  pay  for  the  freight.  And,  where  the 
price  of  transportation  had  risen  before  the  time  when  it  was 
to  be  shipped,  and  the  carrier  refused  to  receive  and  ship  the 
same  according  to  contract,  the  plaintiff  was  held  entitled  as 
damages,  to  the  rise  in  the  jjrice  of  transportation,  without 
showing  that  he  shipped  the  goods  or  had  goods  to  ship.°° 

So,  where  the  plaintiff  made  a  contract  with  the  defendant, 
a  common  carrier,  to  transport  certain  wheat,  oats  and  corn, 
from  Council  Bluffs  to  St.  Louis,  at  a  stipulated  price  per 
sack,  and  the  carrier  refused  to  receive  and  transport  the 
same,  it  was  held  'that  the  measure  of  damages,  in  the  absence 
of  any  proof  that  other  means  of  transportation  could  be  se- 
cured, was  the  difference  between  the  value  of  tlie  grain  in 
Council  Bluffs  and  St.  Louis,  at  the  time  the  contract  should 

89  Brackett  v.  McNair,  14  John.,  170;  O'Connor  v.  Foster,  10  Watts,  418; 
McGoven  v.  Lewis,  56  Penn.  St.,  231. 

90  Ogden  V.  MarshaU,  4  Seld.  (8  N.  Y.),  340;  Grund  v.  Pendergast,  58 
Barb.  216. 


BAILMENTS.  331 


Where  the  Camer  Refuses  to  Eecelve  and  Transport  According  to  Contract. 

have  been  performed,  less  the  contract  price  of  the   affreight- 
ment.'' 

So,  in  an  action  for  a  breach  of  contract  to  transport  goods, 
it  was  held  to  be  the  duty  of  the  plaintiff  to  use  reasonable 
means  to  procure  other  conveyance  of  the  same.  And,  if  such 
conveyance  was  procured,  the  plaintiff  could  only  recover  the 
difference  between  the  price  paid,  and  the  contract  price  with 
the  defendant;  to  which,  however,  there  could  undoubtedly 
be  added  any  extra  trouble  and  expense,  in  procuring  another 
conveyance,  and  the  loss,  if  any,  which  occurred  by  any  un- 
necessary delay  beyond  the  time  fixed  for  delivery,  or  to  be 
implied  in  the  contract  with  the  defendant."* 

§  382.  And  where  the  master  of  a  vessel  contracted  for 
the  transportation  of  a  cargo,  and  after  a  portion  of  the  same 
was  received  on  board  the  vessel  the  master  died,  when  the 
owner  repudiated  the  contract,  and  refused  to  receive  any 
more  of  the  cargo,  or  to  return  the  portion  received;  it  was 
held  that  the  shipper  could  recover  for  the  value  of  the  goods 
withheld  from  him;  for  the  cost  of  taking  the  residue  from 
his  storehouse  to  the  dock,  before  notice  of  the  refusal;  for 
any  injuries  received  by  them,  while  they  lay  there  awaiting 
acceptance  by  the  owner  of  the  vessel;  and  for  the  difference, 
if  any,  between  the  contract  price  for  the  transportation,  and 
the  actual  expenses  incurred  in  obtaining  another  mode  of 
conveyance  of  the  balance  of  the  merchandise.  But  that  he 
could  not  recover  against  the  owner  of  the  vessel  for  injuries 
to  the  property,  received  after  the  owner  refused  to  complete 
the  contract,  caused  by  taking  it  to  the  vessel  for  delivery,  or 
by  want  of  care  of  the  same  thereafter,  on  the  part  of  the 
shipper.^'' 

93  Bridgman  v.  The  Steamboat  Emily,  18  Iowa,  509. 

94  Grund  V.  Pendegast,  58  Baxb.  (N.  Y.),  216. 

95  The  Flash,  1  Abb.  Adm.  R.,  119. 


332  THE  LAW  OF  DAMAGES. 


Delay  in  Delivery  or  Injury  to  Goods,  etc.— Failure  to  Deliver  Machinei-y,  etc. 


§  383.  Delay  in  the  Delhery,  or  Injury  to  Goods ,  no 
Ground  for  Refusal  to  Accept— Where  there  has  been  a  de- 
lay in  the  carriage  and  delivery  of  goods,  or  an  injury  thereto 
by  the  carrier,  this  is  no  ground  for  a  refusal  to  accept  them 
by  the  owner  or  consignee.  It  is  his  duty  to  receive  the 
goods,  and  this  is  usually  no  waiver  of  any  claim  for  damages. 
This  duty  to  receive  exists,  so  long  as  the  goods  are  not  sub- 
stantially changed  but  remain  fit  for  the  ordinary  uses  for 
which  they  were  intended,'^ 

§  384.  Failure  to  Deliver  Machinery,  etc.— Hadley  v. 
Baxendale. — A  somewhat  different  rule  of  damages  obtains 
for  failure  to  deliver  specific  articles  or  manufactures,  such  as 
machinery  for  a  particular  use;  especially  where  the  carrier 
has  knowledge  of  this  fact.  Thus,  where  a  carrier  contracts 
to  carry  and  deliver  machinery  to  be  used  for  some  special 
purpose,  known  to  him,  as  machinery  for  a  mill,  or  a 
machine  for  threshing,  or  reaping,  or  for  mowing;  in  such 
cases,  the  liability  would  be  extended  to  cover  all  such 
losses  as  were  contemplated  by  the  parties,  or,  as  they  had 
reason  to  contemplate  as  the  result  of  a  failure  to  deliver  as  re- 
quired by  the  contract,  express  or  implied."  Damages  for  a 
failure  to  deliver  machinery  in  the  time  required  was  held, 
under  such  circumstances,  to  be  the  value  of  its  use  during 
the  period  of  improper  detention.^' 

And,  in  an  action  against  a  carrier  for  a  delay  in  delivering 
a  boiler,  constructed  for  a  steam  saw  mill,  the  court  held  that 
it  was  analogous  to  a  breach  of  contract  to  deliver  articles 
sold,  or  contracted  for  a  special  purpose,  and  that  the  measure 
of  damages  should  be  compensation  for  actual  expenses  incur- 

96  Bowman  V.  Teal,  23  Wend.,  306;  Story  on  Bail,  §  582;  Hackett  v.  B. 
C.  &  M.  R.  Co.,  35  N.  H.,  390;  Home  Ins.  Co.  v.  Western  Trans.  Co.,  51 
N.  Y.,  93;  Howe  v.  Oswego,  etc.,  R.  Co.,  56  Barb.,  121;  ScovH  v.  Griffith, 
12  N.  Y.  509;  Briggs  v.  The  N.  Cent.  R.  Co.,  28  Barb.,  515. 

97  Hadley  v.  Baxendale,  9  Exch.,  341;  Smeed  v.  Ford,  1  Ellis  &  Ellis,  602. 

98  Priestly  v.  The  Northern  Ind.  &  Chic.  R.  Co.,  26  111.,  205. 


BAILMENTS.  333 


Failure  to  Deliver  Machinery,  etc.— Hadley  v.  Baxendale. 

red  by  the  delay — the  time  consumed  and  trouble  taken  in 
traveling  to  ascertain  -^hat  had  become  of  the  boiler;  the 
expenses  incurred  in  making  preparations  for  connecting  the 
boiler  with  the  fixtures  and  machinery  of  the  saw  mill,  and 
also  interest  on  the  value  of  the  property  during  the  time  of 
the  detention. '° 

And  where  the  plaintiff,  who  was  about  to  commence  the 
publication  of  a  newspaper  in  Cincinnati,  had  purchased 
machinery  in  New  York  for  this  purpose,  of  which  the  car- 
rier, the  defendant,  was  duly  notified  at  the  time  it 
undertook  to  carry  the  machinery  from  New  York  to  Cincin- 
nati in  four  days,  and  there  was  considerable  delay  in  deliver- 
ing the  same,  and  a  portion  of  it  was  lost;  it  was  held,  in  an 
action  for  damages  therefor,  that  the  carrier  was  liable  for  the 
direct  and  necessary  consequences,  including  the  wages  of  the 
men  who  were  idle  for  want  of  the  machinery  after  the  time 
it  should  have  been  delivered,  and  for  the  efforts  made  and 
expenses  incurred  in  order  to  recover  the  lost  portions  of  it, 
as  well  as  the  cost  of  replacing  that  portion  of  it  which  was 
lost.'"" 

§  385.  So,  in  a  recent  case  in  Mississippi,  in  an  action 
against  a  carrier  for  delay  in  transporting  a  boiler  intended 
for  a  steam  saw  mill,  after  a  survey  of  the  authorities,  Small, 
J.,  delivering  the  opinion  of  the  court,  made  the  following 
clear  and  accurate  statement  of  the  law  on  the  measure  of 
damages  in  such  cases,  namely: 

1.  The  proximate  natural  consequences  of  the  breach 
must  always  be  considered. 

2.  Such  consequences  as  from  the  nature  and  subject 
matter  of  the  contract,  may  be  reasonably  thought  to  have 
been  in  the  contemplation  of  the  parties  at  the  time  it  was 
entered  into,  should  be  taken  into  account. 


99  Davis  V.  C,  H.  &  D.  R.  Co.,  1  Desney,  (S.  C.  R.  of  Cin.,  0.),  23. 

'"  Cincinati  Chronicle  Co.  v.  White  Line  Transit  Co.,  1  Cin.  (0.)  R.,  300. 


334  THE  LAW  OF  DAMAGES. 

Failure  to  Deliver  Machinery,  etc.— Hadley  v  Baxendale. 

3.  Damages,  which  fairly  may  be  supposed  not  to  have 
been  the  natural  sequence  of  the  breach,  shall  not  be  recovered, 
unless  by  the  terms  of  the  agreement,  or  by  direct  notice, 
they  are  brought  within  the  expectation  of  the  parties. 

4.  Loss  of  profit  in  a  business  cannot  be  allowed,  unless 
the  data  of  estimation  are  so  definite  and  certain  that  they  can 
be  ascertained  reasonably  by  calculation,  and  then  the  party  in 
fault  must  have  had  notice,  either  from  the  nature  of  the  contract 
or  by  explanation  of  the  circumstances,  at  the  time  the  con- 
tract was  made,  that  such  damages  would  ensue  from  non- 
performance. 

5.  If  the  contract  was  made  with  reference  to  embarking 
in  a  new  business,  (such  as  sawing  lumber  for  the  market,) 
the  speculative  profits  which  might  be  supposed  to  arise,  but 
which  were  defeated  because  of  a  breach  of  the  contract,  wdiich 
delayed  the  business,  cannot  be  looked  to  as  an  element  of 
damages.  *  *  * 

6.  If  the  delay  is  in  the  transportation  of  machinery 
to  be  applied  to  a  special  use,  known  to  the  carrier,  he  is 
responsible  for  such  damages  as  are  fairly  attributable  to  the 
delay,  such  as  the  value  of  the  use  of  the  machinery,  to  be 
tested  by  the  rental  price  or  otber  approximate  means;  the 
expenses  of  idle  hands,  and  the  loss  of  gain  on  work  con- 
tracted to  be  done  for  another  person,  if  such  work  could  have 
been  done  if  the  machinery  had  been  delivered,  and  the  gain 
thereby  definitely  ascertained  in  proper  time. 

7.  The  party  injured  must  not  remain  supine  and  inactive, 
but  should  make  reasonable  exertions  to  help  himself,  and 
thereby  reduce  his  losses  and  diminish  the  responsibility  of 
the  party  in  default  to  him."  '"' 

This  opinion  by  the  learned  judge,  is  a  brief,  but  perspicu- 
ous statement  of  the  elements  of  damages  in  such  cases,  and 
the  propositions  thus  furnished,  are   a  convenient  guide  to 

"I  Vicksburg  &  Meridan  R.  Co.  v.  Ragsdale,  46  Miss.,  458. 


BAILMENTS.  335 


Failure  to  Deliver  Machinery,  etc.— HacUey  v.  Baxendale. 

determine  the  damages  where  common  carriers  are  respon- 
sible. 

§  386.  Where  goods  are  contracted  to  be  sold  at  a  price 
fixed,  and  to  be  delivered  at  a  particular  time  and  place,  and 
a  carrier  undertakes  to  transport  and  deliver  them,  with  a  full 
knowledge  of  the  facts,  the  measure  of  damages  for  a  delay 
in  the  delivery,  by  which  the  consignor  loses  the  sale,  is  the 
loss  sustained,  which  would  be  the  difference  between  the  con- 
tract price  and  the  market  price,  at  the  time  of  the  delivery, 
less  the  cost  of  carriage,  of  course,  where  it  has  not  been 
paid.'""- 

So,  in  an  action  for  a  failure,  by  a  carrier  to  deliver  corn 
within  a  reasonable  time,  after  receiving  it  for  carriage,  and 
by  the  unreasonable  delay  of  the  carrier  it  became  heated  and 
injured;  it  was  held,  that  if  the  carrier  knew  it  was  shipped 
"under  a  special  contract,  for  its  sale  and  delivery  at  a  certain 
price,  that  price  should  govern  in  assessing  damages;  but  if 
not,  the  market  price  should  govern.'"^  So,  where  peas  were 
shipped  from  Canada,  to  be  carried  to  New  York,  but  owing 
to  the  carrier's  neglect  and  inexcusable  delay,  they  were  stop- 
ped on  the  way  by  the  freezing  of  the  lakes,  and  the  carrier 
refused  to  transport  them  by  rail  or  to  deliver  them  to  the 
shipper,  except  on  payment  of  the  freight,  and  they  would 
have  been  detained  through  the  winter  season,  if  the  plaintiff 
had  not  replevied  them,  which  he  did,  and  sent  them  to  the 
Boston  market,  which,  under  the  circumstances,  was  a  judi- 
cious course,  it  was  held,  that  the  plaintiff  should  recover  the 
difference  between  the  net  proceeds  of  this  sale  in  Boston,  and 
their  market  value  in  New  York  at  the  time  when  they  should 
have  been  delivered.'"^ 

'°2  Doming-  v.  The  Grand  Trunk  R.  Co.,  48  N.  H.,  455.  See,  also,  Ward 
V.  N.  Y.  Cent.  R.  Co.,  4  N.  Y.,  29. 

'°3  111.  Cent.  R.  Co.  v.  McClellan,  54  III.,  58.  See,  also.  Priestly  v.  North- 
ern Ind.  &  Chicago  R.  Co.,  26  111.,  205;  Favor  v.  Philbrick,  5  N.  H.,  357. 

'°4  Laurent  v.  Vaughan,  30  Vt.,  90. 


336  THE  LAW  OF  DAMAGES. 

When  General  and  Limited  Rule  Prevails— When  Larger  Rule  Prevails. 

§  387-  The  same  doctrine  lias  frequently  been  recognized 
in  England.  The  famous  case  of  Hadlej  v.  Baxendale  is  one 
in  point.'"^  But,  in  a  recent  case  where  some  regalia  had  been 
sent  to  plaintiif,  to  be  used  in  a  procession,  and  which  he  had 
hired,  for  that  purj30se,  at  an  expense  of  £20,  but  it  had  not 
been  delivered  in  time  to  be  used,  owing  to  the  unreasonable 
delay  of  the  carrier,  and  the  plaintiff  incurred  £5  additional 
expense,  in  looking  for  it;  it  was  held,  that  the  plaintiff  was 
entitled  to  recover  the  latter  item  as  damages,  but  not  tlie 
former  which  was  too  remote;  that  it  was  not  reasonable  to 
hold  a  common  carrier  liable  for  special  and  unusual  damages 
in  consequence  of  a  delay  in  delivering  goods,  unless  he  had 
notice  that  time  was  important;  but  that  he  was  responsible 
for  the  ordinary  damages  for  a  delay  of  delivery,  beyond  a 
reasonable  time.'"* 

§388.  When  the  General  and  Limited  Rule  Pre- 
vails.— It  may  be  stated,  on  the  weight  of  authority,  that, 
where  the  carrier  has  no  notice  of  the  purpose  for  which 
merchandise  is  sent,  or  of  any  special  purpose  in  sending  it, 
or  that  there  is  a  sale  depending  upon  the  delivery  of  the 
merchandise  or  article  at  a  specified  time,  he  will  only  be 
liable  in  case  of  delay  in  the  delivery  beyond  a  reasonable 
time,  or  the  time  stipulated  in  the  contract  for  its  carriage, 
under  the  ordinary  rule,  which  as  we  have  noticed,  is  the  dif- 
ference in  value  between  the  merchandise  at  the  time  and 
place  it  should  have  been  delivered,  and  the  time  it  was  in 
fact  delivered,  if  it  was  less  valuable  at  the  latter  time,  less 
the  price  of  transportation,    , 

§  389 .  When  the  Larger  Rule  Prevails  .—On  the  con- 
trary if  the  above  facts  exist,  and  especially  if  he  undertakes 
to  deliver  within  a  certain  time,  to  meet  the   requirements  of 

'°s  9  Exch.,  341;  see,  ante,  §  252. 

'°«  Hales  V.  London  &  N.  W.  R.  Co.,  4  B.  &  S.,  66,  See,  also,  Benson  v. 
The  New  Jersey  Railway  &  Trans.  Co.,  9  Bosw.,  (N.  Y.),  412. 


BAILMENTS.  337 


Agreement  to  Furnish  Cargo  or  Freight— Measure  of  Damages. 

the  shipper,  and  with  knowledge  of  those  requirements,  he 
is  liable  for  more  remote  losses  caused  by  the  delay,  and  must 
indemnify  the  consignor  for  any  special  losses  in  consequence 
thereof,  embracing  all  such  as  were  anticipated,  or  might 
reasonably  have  been  anticipated  by  the  parties,  as  the  probable 
result  of  a  delay,  under  all  the  circumstances  of  the  case.'" 

§  390.    Agreement  to  Furnish  Cargo  or  Freight.— 

Where  there  is  a  breach  of  an  agreement  to  furnish  cargo  or 
freight,  the  actual  loss  sustained  thereby,  is  the  measure  of 
damages."*  But  in  such  cases,  the  rule  that  the  injured 
party  should  use  reasonable  efforts  to  prevent  loss,  applies.'"' 
Thus,  where  a  party  who  has  chartered  a  vessel,  refuses  to 
furnish  a  cargo  according  to  his  contract,  the  measure  of 
damages  is  the  amount  the  vessel  would  have  earned  at  the 
rates  specified,  deducting  actual  net  earnings  during  the 
time.""  And  if  the  carrier  has  received  other  cargo  in  the 
place  of  that  withheld  by  the  charterer,  or  if  by  diligence  he 
might  have  done  so,  or  if  he  could  have  found  other  employ- 
ment for  his  vessel,  these  facts  may  be  shown  in  reduction  of 
the  damages  under  the  contract,  and  whatever  has  been,  or 
might  have  been  earned  in  this  way,  should  be  deducted  from 
the  freight  agreed  to  be  paid."' 

§  391.  Measure  of  Damages. — Tlie  usual  measure  of 
damages  in  such  cases  is  the  difference  between  what  the  plain- 
tiff would  have  earned  had  the  contract  been  kept  and  what 
has,  or  might  with  reasonable  efforts  have  been  earned,  not- 

'°7  Scott  V.  Boston  Steamship  Co.,  106  Mass.,  468.  See,  also,  Vicksburg, 
etc.,  R.  Co.  V.  Ragsdale,  46  Miss.,  458;  Wilson  v.  The  Lancash.  &  Yorkshire 
R.  Co.,  30  L.  J.,  C.  P.  (N.  S.),  232.  Cooper  v.  Young,  22  Geo.,  269;  King 
V.  Woodbridge,  34  Vt.,  -565;  Weston  v.  The  Gt.  Tr.  R.  Co.,  54  Me.,  376; 
Whalen  v.  Aldrich,  8  Mmn.,  364;  Ward  v.  New  York,  etc.,  R.  Co., 
47  N.  Y.,  29. 

»°8Sedg.  onDam.,  361.    Mayne  on  Dam.,  149. 

'°9  Utter  V.  Chapman,  38  Cal.,  659;  Murrell  v.  Whiting,  32  Ala.,  54. 

""  Achbumer  v.  Bachen,  7  N.  Y.,  262;  Smith  v.  McGuire,  3  Hm-1.  &  Nor., 
554;  Dean  v.  Ritter,  18  Mo.,  182;  Hunter  v.  Fiy,  2  B.  .fe  A..  421. 

'"  Bailey  V.  Damon,  3 Gray  (Mass.),  92;  Cockbum  v.  Alexander,  6  C.  B.,  814. 
£2 


338  THE  LAW  OF  DAMAGES. 

Notice  of  the  Arrival  of  Goods— Damages  for  a  Failure. 

witlistandiiig  the  breach.  And  where  a  party  agreed  to  load 
a  ship  with  a  stipulated  quantity  of  coal  to  be  carried,  and 
failed  to  deliver  the  whole  quantity  it  was  held,  that  if  goods 
M^ere  offered  by  a  third  person  to  be  shipped  to  an  amount 
sufficient  to  make  up  the  deficiency,  though  at  reduced  rates 
of  compensation,  but  still  at  current  prices,  the  owner  or 
master  of  the  vessel  was  bound  to  receive  such  goods,  and  give 
the  benefit  of  the  net  earnings  of  the  substituted  cargo,  to  the 
original  charterer."^ 

§  392.  Notice  of  the  Arrival  of  Goods— Damages  for 
a  Failure. — It  is  perhaps  the  usual  custom  of  carriers  to  give 
notice  to  the  consignee  of  the  arrival  of  goods  at  the  place  of 
destination,  within  a  reasonable  time,  if  he  can  with  reason- 
able diligence  be  found,  and  where  this  custom  prevails,  in  case 
of  a  failure  to  give  such  notice,  the  measure  of  damages  for  a 
delay  of  goods  caused  thereby  would  be  the  same  as  for  any 
other  delay;  namely,  the  difierence  between  the  value  of  the 
goods  at  the  time  when  the  notice  of  the  arrival  should  have 
been  given  and  at  the  time  notice  was  given."' 

And  in  case  the  consignee  neglects  beyond  a  reasonable  time 
to  receive  the  goods,  the  liability  of  the  carrier  changes  from 
that  of  a  common  carrier  to  that  of  a  warehouseman.'" 

"2  Hickslier  v.  McCrea,  24  Wend.,  304;  Shannon  v.  Comstock,  21  Id.,  457; 
Costegan  v.  Mohawk  &  Hud.  R.  Co..  2  Den.  (N.  Y.),  610;  Walworth  v.  Pool, 
9  Ark.,  394;  Abbott  on  Ship.,  part  4,  Ch.  1.  The  burden  of  proof  is  on  the 
defendant  to  show  these  facts,  Medbury  v.  Sweet,  3  Chand.  (Wis.),  231. 

"3  New  Orleans,  etc.,  R.  Co.  v.  Tyson,  46  Miss.,  729.  See,  also,  Red.  on 
Bail.,  §  157;  Meerson  v.  Hope,  2  Sweeny  (N.  Y.),  561,  where  it  was  held  that 
an  express  company  should  make  actual  delivery. 

"*  Wood  V.  Barney,  45  N.  Y.,  844.  For  further  authorities  as  to  when  the 
liabihty  of  a  common  carrier  ceases,  and  changes  to  that  of  a  warehouseman, 
see,  Hirsch  v.  The  Quaker  City,  2  Disney  (Ohio),  144;  Turner  v.  Buffalo, 
etc.,  R.  Co.,  44  N.  Y.,  505;  Cook  v.  Erie  R.  Co.,  58  Barb.  (N.  Y.),  312; 
(1871);  Parker  v.  Milwaukee,  etc.,  R.  Co.,  30  Wis.,  689;  Graves  v.  Hartford, 
etc..  Steamboat  Co.,  38  Conn.,  143.  But  a  mere  notice  is  not  sufficient  to 
discharge  the  carrier  from  his  responsibility.  The  consignee  should  have 
time  and  opportunity  to  remove  the  goods.  Maignau  v.  New  Orleans,  etc., 
R.  Co..  24  La.  An.,  333. 


BAILMENTS.  339 


Refusal  to  Deliver— Contracts  Limiting  Liability. 


§393.  Refusal  to  Deliver.— A  refusal  of  a  carrier  to 
deliver  ^oods,  is  a  conversion,  and  would  authorize  a  recovery 
of  the  same  or  their  value.  But  if  the  refusal  be  qualified, 
and  the  qualification  be  reasonable  and  made  in  good  faith 
there  is  no  conversion. 

Thus,  where  parcels  are  defectively  addressed,  a  refusal  to 
deliver  them  to  a  person  not  identifying  himself  as  the  con- 
signee, or  producing  any  evidence  of  title  to  the  property, 
coupled  with  an  offer  to  deliver  the  goods  if  such  title  or 
authority  is  shown,  is  justified  by  the  duty  of  carriers  to  secure 
a  delivery  to  the  proper  persons."^ 

§  394.  Contracts  Limiting  Liability  .—The  common 
carrier  may  limit  his  responsibility  as  insurer;  but  in  order  to 
do  so  there  must  be  an  express  agreement  to  that  eflect.'" 
But  on  grounds  of  public  policy  the  limitation  of  liability 
cannot  exempt  the  carrier  from  damages  for  actual  negligence 
of  himself  or  his  servants."'  And  a  mere  notice,  or  words  of 
exemption  in  a  receipt  or  bill  of  lading  are  not  sufficient  fur 
that  purpose,  unless  it  is  shown  that  it  was  brought  to  the 
knowledge  of  the  consignor  and  he  assented  thereto,  and  theu 
only  to  reasonably  qualify  the  liability  under  special  circum- 
stances."* To  exonerate  a  carrier  from  liability  for  loss  of  a 
passenger's  baggage,  through  alleged  neglect  or  refusal  of  the 
passenger  to  comply  with  a  reasonable  regulation  of  the  carrier, 

"3  McEntee  v.  New  Jersey  Steamboat  Co.,  45  N.  Y.,  34. 

"«  Railroad  Co.,  v.  Manufact.  Co.,  16  WaU.,  319  (1872);  Falkean  v.  Fargo, 
44  How.  (N.  T.)  Pr.,  325. 

"7  Indianapolis,  etc.,  R.  Co.  v.  Allen,  31  Ind.,  394;  Michigan,  etc.,  R.  Co. 
V.  Heaton,  37  Id.,  448;  Ketchum  v.  American,  etc.,  Exp.  Co.,  52  Mo.,  390;  2 
Red.  on  Railways,  §  160. 

"8  Hopkins  v.  Wescott,  6  Blatchf.,  64;  Smith  v.  North  Carohna  R.  Co.,  64 
N.  C,  235;  Nelson  v.  Hudson,  etc.,  R.  Co.,  4-8  N.  Y.,  498;  Lamb  v.  Camden, 
etc.,  R.  Co..  46  N.  Y.,  271;  Barnhard  v.  Baltimore,  etc.,  R.  Co.,  34  Md., 
282;  Flash  v.  New  Orleans,  etc.,  R.  Co.,  23  La.,  353;  Pembeton  v.  N.  Y.  Cent. 
R.  Co.,  104  Mass.,  144;  Rickets  v.  Baltimore,  R.  Co.,  4  Lans.  (N.  Y.),  446; 
The  Pacific,  Deady  17;  Red.  on  Railways,  §  160. 


340  THE  LAW  OF  DAMAGES. 

Injury  to  Passengers. 

it  should  be  shown  that  notice  thereof  was  given  to  the  pas- 
senger, or  that  he  knew  it,  or  that  it  had  become  by  general 
usage  so  notorious  and  universal,  that  he  ought  to  have 
known  it."' 

§  395 .  Injury  to  Passengers.— The  liability  of  the  com- 
mon carrier  for  injury  to  passengers,  is  limited  to  his  negli- 
gence; and  the  carrier  is  not  responsible  for  the  safe  car- 
riage of  passengers  to  the  same  extent,  as  in  case  of  merchan- 
dise."'"  The  distinction  is  illustrated  by  the  following  case: 
Thus,  in  an  action  for  an  injury  caused  by  the  breaking  of  an 
axletree  of  the  defendant's  coach,  on  which  the  plaintiff  was 
traveling,  it  appeared  that  the  axletree  had  been  examined 
a  few  days  before  it  broke,  without  the  discovery  of  any  flaw, 
and  that  at  the  time  of  the  accident  a  skillful  driver  was 
driving  in  the  usual  track  and  at  a  moderate  pace.  Mansfield, 
J.,  in  delivering  the  opinion  of  the  court,  said:  "As  the 
driver  has  been  cleared  of  everything  like  negligence,  the 
question  for  the  jury  will  be  as  to  the  sufficiency  of  the  coach. 
If  the  axletree  was  sound  as  far  as  human  eye  could  discover, 
the  defendant  is  not  liable.  There  is  a  difference  between  a 
contract  to  carry  goods,  and  a  contract  to  carry  passengers. 
For  the  goods,  the  carrier  is  responsible  at  all  events.  But 
he  does  not  warrant  the  safety  of  the  passenger.  His  under- 
taking as  to  them,  goes  no  further  than  this,  that  as  tar  as 
human  care  and  foresight  can  go,  he  will  provide  for  their 
safe  conveyance.  Therefore,  if  the  breaking  down  of  the 
coach  was  purely  accidental,  the  plaintiff  has  no  remedy  for 
the  misfortune  he  has  encountered.'""' 

"9Macklin  v.  New  Jersey  Steamboat  Co.,  7  Abb.  (N.  Y.)  Pr.,  N.  S.  229; 
Camden  &  Amboy,  R.  Co.  v.  BauldaufF,  16  Pa.  St.,  67;  Red.  on  Railways,  § 
160  par.  12. 

'«>  Aston  V.  Haven,  2  Esp.,  533. 

"'  Cristie  v.  Griggs,  2  Camp.,  79.  See,  also,  Harris  v.  Coster.  1  C.  &  P., 
636;  White  V.  Boulton,  Peak  Cas.  81;  Derwort  v.  Loomer,  21  Conn.,  245; 
Caldwell  V.  New  Jersey  Steamboat  Co.,  47  N.  Y.,  282;  Sawyer  v.  Dulany, 
30  Tex.,  479. 


BAILMENTS.  341 


Reasons  for  Difference  in  Liability  between  Merchandise  and  Passengers. 

In  the  case  of  passengers,  the  carrier  is  only  required  to 
use  the  greatest  care,  to  employ  skillful  and  competent  agents, 
to  use  such  means  and  foresight  in  securing  the  safety  of 
passengers,  as  persons  of  the  greatest  care  and  prudence 
usually  exercise  in  similar  cases  '"  But  the  carrier  is  not  re- 
sponsible for  mere  accidents  and  casualities,  where  there  is  no 
want  of  care,  skill,  or  foresight  on  his  part,  or  that  of  his 
agents,'" 

§  396.  Reasons  for  the  Diiference  in  Liability  Be- 
tween Merchandise  and  Passengers.— The  reasons  for 
the  distinction  between  his  liability  for  merchandise  and  pas- 
sengers are,  that  in  the  case  of  goods  he  has  absolute  control 
over  them,  and  may  take  such  means  to  secure  them  as  he 
may  deem  proper.  He  may  enclose  them,  put  them  under 
guard,  and  lock  them  up.  But,  in  the  case  of  passengers, 
these  precautions  cannot  be  taken.  They  have  the  power  and 
liberty  of  locomotion;  they  cannot  be  confined  or  entirely 
restrained  of  liberty,  but  must  to  some  extent  be  free  to  act. 

The  reasons  for  a  more  limited  liability  in  case  of  passen- 
gers, applies  to  a  great  extent,  if  not  with  equal  force,  to,  the 
case  of  the  carriage  of  slaves,  and  of  live  stock  generally. 
The  question,  whether  the  liability  of  the  carrier  in  cases   of 

'^  Taylor  v.  Grand  T.  R.  Co.,  48  N.  H.,  304.  As  to  what  evidence  should 
go  to  the  jury,  see  Geddes  v.  Metropolitan  R.  Co.,  103  Mass.,  391.  See,  also, 
Angel  V.  M.  &  M.  R.  Co.,  18  la.,  555;  Winne  v.  The  111.  Cent.  R.  Co.,  31 
Id.,  583.  And  when  the  court  in  an  action  for  an  injury,  caused  by  the 
explosion  of  a  boiler  of  a  steamboat,  instructed  the  jury  that  they  could  not 
visit  punitory  damages  upon  the  defendants,  unless  they  beheved  that  they 
neglected,  either  in  the  construction  or  management  of  the  boiler,  some  act 
which  is  generally  resorted  to,  to  test  its  sufficiency,  or  to  work  it  safely; 
held,  not  erroneous.  CaldweU  v.  New  Jersey  Steamboat  Co.,  56  Barb.,  425; 
47  N.  Y.,  282. 

»=3  Hall  v.  Connecticut  River  Steamboat  Co.,  13  Conn.,  819;  Stokes  v. 
Saltonstall,  13  Pet..  181;  Stockton  v.  Frey,  4  GiU.,  406;  Camden  &  Amboy 
R.  Co.  v.  Burke,  19  Wend.,  236;  Curtis  v.  R.  &  S.,  R.  Co.,  20  Barb.,  282; 
18  N.  Y.,  534;  Frank  v.  Palter,  17  111.,  406.  See  also,  as  to  liability  for  acts 
and  neghgence  of  servants,  Sherely  v.  Billings,  8  Bush.  (Ky.),  147;  Bry- 
ant v.  Rick,   106  Mass.,  180. 


342  THE  LAW  OF  DAMAGES. 

Delay  of  Passengers. 

merchandise,  applied  to  the  carriage  of  slaves,  was  determ- 
ined in  an  early  case  in  the  Supreme  Court  of  the  United 
States,  where  it  was  held,  "that  the  doctrine  of  common 
carriers  did  not  apply  to  the  case  of  carrying  human  beings, 
such  as  negro  slaves."  '"*  And  the  doctrine  of  insurance,  as  we 
have  seen,  is  not  applied  to  the  carrier  of  live  stock  to  its  full 
extent.'"  In  all  these  cases,  the  general  principle  is  that  of 
indemnity.  But,  in  cases  of  willful  and  malicious  injury,  or 
where  the  negligence  is  so  gross  as  to  warrant  the  inference 
of  malice,  or  that  malice  will  be  presumed,  or  imputed  to  the 
defendant,  as  we  have  seen,  the  carrier  may  be  further  subject 
to  punitive  or  exemplar^''  damages.'" 

§  397.    Delay  of  Passengers.— The  common  carrier  is 

also  responsible  in  case  of  unreasonable  delays  in  the  carriage 
of  passengers,  for  all  actual  damages  sustained  thereby;  but, 
in  the  absence  of  fraud,  not  for  exemplary  or  punitive  dam- 
ages. And,  in  an  action  for  losses  sustained  by  such  delay,  it 
is  proper  to  show  the  rate  of  wages  earned  by  persons  of  the 
plaintiff's  trade  at  the  place  of  his  destination  during  his 
detention,  to  guide  the  jury  in  estimating  the  damages  for  a 
delay.  And,  it  is  also  proper  for  the  jury  to  consider  the 
probabilities  that  the  plaintiff  could  have  obtained  work  at  his 
place  of  destination  upon  his  arrival  there,  and  whether  it 
would  have  continued  during  the  entire  period  of  the  delay.'" 
So,  where  there  was  a  neglect    to   transport  a  passenger 

^^^  Boyce  v.  Anderson,  2  Pet.,  150;  2  Pars.,  on  Con.,  220,  note. 

'=s  As  to  the  liability  in  case  of  Hve  animals,  see,  ante,  §  370. 

'=«  See,  ante.  §  80,  et  seq.    1  Red.  on  Railways,  §  134,  p.  551. 

'^  Young  V.  The  Pacific  Mail,  etc.,  Co.,  1  Cal.,  353.  See,  also.  The  Zeno- 
bia,  1  Abb.  Ad ,  80.  Where  the  plaintiff  paid  liis  fare  upon  one  of  the 
defendant's  cars,  but  the  car  stopped  for  some  reason  and  the  plaintiff  was 
transferred  to  another,  on  which  the  conductor  demanded  the  fee  again,  and 
the  plaintiff  refusing  to  pay  the  same  he  was  ejected  therefrom :  Held,  that 
the  conductor  acting  in  good  faith,  and  the  plaintiff  sustaining  no  material 
injury,  he  could  only  recover  for  loss  of  time,  the  fare  upon  another  car  and 
recompense  for  injury  to  his  feelings,  and  not  exemplary  damages.  Hamil- 
ton V.  Third  Av.  R.  Co.,  53  N.  Y.,  25. 


BAILMENTS.  343 


Injury  Resulting  in  Death, 


according  to  contract  from  New  York  to  San  Francisco,  it  was 
held,  that  his  expenses  during  the  delay,  and  those  of  a  subse- 
quent illness  in  consequence  thereof,  and  the  value  of  the 
time  lost  by  the  detention,  were  legitimate  items  in  fixing  the 
amount  of  damages.'"' 

And;  where  there  was  an  agreement  to  take  on  a  passenger 
at  a  certain  port,  and  a  failure  to  stop  at  the  port,  and  in  con- 
sequence thereof  the  passenger  suffered  great  bodily  exposure; 
it  was  held,  that  these  facts  might  be  shown  in  aggravation  of 
damages.'*' 

§  398.  Injury  Resulting  in  Death.— At  common  law, 
for  injuries  resulting  in  death,  no  action  could  be  maintained 
by  the  heirs  or  personal  rejDresentativ^es  of  the  deceased,  but 
the  right  of  action  died  with  the  person.'^"  But,  by  statute, 
not  only  in  England,  but  in  most,  if  not  all  of  the  states,  the 
law  has  been  changed,  so  that  in  England  and  generally  in 
this  country,  where  a  wrongful  act,  neglect  or  default  of 
another,  produces  death,  the  wrongdoer  is  civilly  liable  for  the 
injury  to  the  heirs,  next  of  kin  or  representatives  of  the 
deceased.'" 

The  statutes  of  many  states  also  provide  a  maximum  limit 
of  damages  in  such  cases;  and  where  such  statutes  exist,  the 
damages  may  be  less,  but  can  never  exceed  the  limits  thus  fixed. 
But  this  subject  will  be  hereafter  more  fully  considered  when 
we  come  to  treat  of  injuries  resulting  in  death. '^° 

'=8  Williams  v.  Vanderbilt,  28  N.  Y.,  217.  See,  also,  Hamlin  v.  The  Great 
N.,  etc.,  R.  Co.,  1  H.  &  N.  Excb..  408;  Porter  v.  Steamboat  New  England, 
17  Mo.,  290.  And  the  jury  may  allow  the  plaintiff  such  compensation  for  his 
time  as  they  may  deem  reasonable,  though  there  is  no  proof  of  its  value. 
WilUams  v.  Vanderbilt,  supra. 

'=9  Heim  v.  McCaughan,  32  Miss.,  17.  See,  also,  ante,  §  58,  and  authori- 
ties there  cited. 

'30  Blake  v.  Mid.  R.  Co.,  10  E.  L.  &  E.,  4:37;  s.  c,  18  Q.  B.,  93;  2  Pars,  on 
Con.,  701.    See.  also,  post.  Chap.  21. 

'3x  9  and  10  Vict.  C,  93,  §§  1  and  3;  New  York  Stat..  1847,  Chap.  450,  § 
2;  amended  by  Stat.  1849,  Chap.  256;  Vermont  Gen.  Stat.,  1863,  Chap.  52; 
New  Jersey  Stat.,  Nixon's  Dig.,  1868,  p.  234. 

^sf  See,  post,  Chap.  21. 


344  THE  LAW  OF  DAMAGES. 

Contributory  Negligence— Responsibility  for  Baggage. 

§  399.  Contributory  Negligence.— In  a  previous  chap- 
ter we  have  treated  the  subject  of  contributory  negligence, 
and  its  effect  in  destroying  any  right  of  action  for  an  injury 
received."' 

§  400 .  Responsibility  for  Baggage.— The  general  rule 
of  responsibility  of  carriers  in  relation  to  merchandise  in  gen- 
eral, which  they  undertake  to  carry,  and  damages  in  relation 
thereto  extends  also  to  the  passenger's  baggage;  and  they  are 
responsible  for  any  injury  thereto  or  loss  of  the  same,  not 
occasioned  by  what  is  technically  called,  the  act  of  God  or  the 
jpublio  enerny.'^*  But  in  case  of  common  merchandise  or 
baggage,  the  carrier  will  also  be  exempt  from  such  loss  as 
results  from  the  fraud  or  willful  misrepresentation  of  the  pas- 
senger, and  esj)ecially  where  by  reason  thereof  less  care  is 
bestowed  upon  the  baggage  lost  or  injured  than  otherwise 
would  have  been ;  as  where  the  baggage  includes  a  large  amount 
of  money  or  other  articles  of  great  value,  and  no  notice  thereof 
is  given  to  the  carrier;  or  where  from  the  nature  of  the  goods, 
peculiar  care  is  required,  and  the  nature  is  not  known  to  the 
carrier,  but  is  concealed  from  him.'^^  Nor  is  the  carrier 
responsible  for  goods  thrown  overboard  from  necessity  to  save 
life,  or  to  save  other  property;  as  this  is  deemed  a  loss  through 
the  act  of  God.  But  if  done  to  save  property,  and  property 
is  saved  thereby,  the  property  saved  must  contribute,  on  prin- 
ciples of  maritimejurisprudence,  to  make  up  a  general  average. 
And  on  the  same  principle  he  is  not  liable  for  goods  that  perish 
or  are  lost  from  inherent  defects  or  causes."' 

'33  See,  ante,  Chap.  10. 

'34  Parsons  on  Con.,  673. 

'33  Ruter  V.  Mich.  Cent,  R.  Co.,  1  Biss.,  35.  But  see,  also,  Stoneman  v. 
Erie  R.  Co..  52  N.  Y.,  429. 

'35  2  Parsons  on  Con.,  676,  677.  But  the  carrier  may  be  liable,  under  a 
special  contract  to  deliver  fruit  within  a  certain  time,  and  a  failure  so  to  do, 
whereby  the  fruit  decays.  Reed  v.  Philadelphia,  etc.,  R.  Co.,  3  Houst. 
(Del.),  176. 


BAILMENTS.  345 


Exemplary  Damages— Contracts  Limiting  Liability  for  Baggage. 

§  401.  Exemplary  Damages.— The  subject  of  exem- 
plary damages  in  connection  with  negligence,  also  more  prop- 
erly belongs  to  the  treatment  of  negligence  as  a  tort,  and  we 
therefore  defer  its  treatment  until  we  come  to  the  considera- 
tion of  damages  in  cases  of  torts.'" 

§  402.    Contracts  Limiting  Liabilities  for  Baggage. 

— The  general  principles  in  respect  to  limiting  liability  by 
contract,  or  notice  in  reference  to  the  carriage  of  merchandise 
generally,  apply  as  well  to  baggage.  The  carrier  cannot,  on 
general  principles  of  public  policy,  be  exonerated,  even  by 
contract,  from  all  liability  for  losses  or  injury  thereto.  But  he 
may  impose  reasonable  conditions  and  limitations  of  liability 
by  contract,  such  as  to  require  the  payment  of  extra  charges 
for  the  transportation  of  extra  hazardous  or  perishable,  or 
unusually  valuable  articles."* 

'37  See,  post,  Chap.  22. 
.  133  Smith  V.  North  Carohna  R.  Co.,  64  N.  C,  235;  Nelson  v.  Hudson,  etc., 
R.  Co.,  48  N.  Y.,  498;  Keeney  v.  Grand  Trunk  R.  Co.,  47  N.  Y.,  525. 


346  THE  LAW  OF  DAMAGES. 

Liability  of  Telegrapli  Companies. 


CHAPTER  XV. 


LIABILITY  OF  TELEGRAPH  COMPANIES. 

Section  410.  Importance  of  the  Subject. 

411.  Are  they  Common  Carriers  P— Controversy. 

412.  At  least  Ordinary  Care  Required. 

413.  Measure  of  Damages— Order  for  Salt. 

414.  The    Doctrine    of    Hadley   v.    Baxendale    Explained    and 

Applied. 

415.  Mistake  in  a  Message  Ordering  Bouquets— Damages. 

416.  Mistake  in  a  Message  Ordering  a  Shawl— Damages. 

417.  Delay  in  Sending  a  Message  Ordering  Property  Attached- 

Damages. 

418.  Mistake  in  a  Message  Ordering  Stock  Sold  and  other  Stock 

Purchased— Damages. 

419.  Mistake  in  a  Message  Ordering   "Wheat  Purchased,  etc.— 

Damages. 

420.  Delay  in  a  Message  Directing  the  Sale  of  "  Lepines  "—Dam- 

ages. 

421.  "Where,  by  a  Mistake,  a  Message  is  "Wrongly  Directed  and 

Delayed. 

422.  "Where  Damages  are  Limited  to  Interest— Mistake— Delay. 

423.  Company  Liable  for  Damages  that  Directly  and  Naturally 

Result,  etc. 

424.  Damages  Contemplated. 

425.  Limitation  of  Liability  by  Contract. 

426.  Not  Insurers— Reasonable  Rules. 

427.  Omission  or  Refusal  to  Send  a  Message— Rules. 

428.  Inferences. 

429.  "Where  there  are  Connecting  Lines— Diversity  of  Decisions 

as  to  Liability. 

430.  Can  the  Party  to  "Whom  the  Message  is  Sent  Maintain  an 

Action  ? 

431.  Conclusions  Deducible  from  the  Decisions. 


TELEGEAPH  COMPANIES.  347 

Importance  of  Subject— Are  tbey  Common  Carriers? 

§  410.  Importance  of  the  Subject. — The  science  of  tele- 
graphy has  become  so  related  to  our  various  commercial  pur- 
suits, and  social  and  scientific  interests,  as  frequently  to  require 
the  aj^plication  of  legal  principles  to  the  adjustment  of  con- 
troversies relatino;  thereto.  The  number  and  extent  of 
telegraph  lines  in  this  country,  covering  like  a  spider's  web 
the  whole  land,  and  closely  uniting  us  with  all  parts  of  the 
Old  World,  and  the  great  amount  of  important  business  trans- 
acted through  this  means,  render  the  interest  only  second  in 
importance  to  our  vast  railroad  system. 

§411.    Are  They  Common  Carriers?— Controversy. 

— Some  controversy  has  occurred  in  reference  to  the  question, 
whether  telegraph  companies  are  common  carriers,  or  whether 
their  liabilities  are  the  same  as  common  carriers  of  merchan- 
dise. On  general  principles  it  may  be  said  that  their  duty 
and  liability  are  closely  allied  to  that  of  common  carriers,  but 
they  are  not  strictly  common  carriers,  nor  subject  to  the  same 
strict  responsibility.  The  authorities  are  somewhat  conflict- 
ing in  reference  to  the  extent  and  character  of  this  liability. 
On  one  side  it  is  held,  that  they  are  amenable  substantially  to 
the  same  liability.'  And,  on  the  other  hand,  a  more  limited 
liability,  if  not  maintained  by  a  preponderance  of  authority, 
is  at  least  by  many  very  respectable  ones.^  In  the  case  of 
Breese  (&  Mumford  v.  U.  S.  Telegraph  Co.,  the  court  (John- 
son, J.,)  say,  that  the  business  of  telegraphing  is  "  radically 

'  Baldwin  v.  U.  S.  Tel.  Co.,  1  Lans.  (N.  Y.),  125;  s.  c,  45  N.  Y.,  744; 
Mc Andrew  v.  The  Electric  Telegraph  Co.,  33  Eng.  Law  &  Eq.,  180;  Bowen 
V.  The  Lake  Erie  Tel.  Co.  (C.  P.),  Ohio  (N.  P.),  1  Am.  L.  Reg.,  685  (1858); 
Parks  V.  Alta.  Tel.  Co.,  13  Cal.,  422;  Bryant  v.  The  Am.  Tel.  Co.,  1  Daly, 
575  (1865);  Washington  &  N.  0.  Tel.  Co.  v.  Hobson,  15  Gratt.  (Va.),  122 
(1860);  Tyler  v.  W.  U.  Tel.  Co.,  60  lU.,  421;  W.  U.  Tel.  Co.  v.  Carew,  15 
Mich.,  525. 

=  Leonard  V.  New  York,  etc.,  Tel.  Co.,  41  N.  Y.,.544;  Per  Hunt,  J.,  in  N. 
Y.  &  Wash.  Print.  Tel.  Co.  v.  Dryburgh.  35  Penn.,  298  (1869);  De  Rutte  v. 
N.  Y.,  Alb.  &  Buff.  Tel.  Co.,  1  Daly  (N.  Y.  C.  P.),  547;  s.  c,  30  How.  Pr., 
403  (1866);  Smithson  v.  U.  S.  Tel.  Co.,  29  Md.,  162  (1868);  Ellis  v.  American 
Tel.  Co.,  13  AHen,  226;  AUen  Tel.  Cases,  663. 


348  THE  LAW  OF  DAMAGES. 

Ordinary  Care  Required. 

and  essentially  different,  not  only  in  its  nature  and  character, 
but  in  all  its  methods  and  agencies,  from  the  business  of 
transporting  merchandise  and  material  substances  from  place 
to  place  by  a  common  carrier."^  While  in  a  former  case, 
Dalj'^,  J.,  held,  that  as  the  business  of  these  companies  "  is 
one  which  leads  to  their  being  intrusted  with  confidential  and 
valuable  information,  especially  in  commercial  matters,  there 
are  opportunities  for  fraud  and  abuses,  which,  in  view  of  the 
relation  which  they  occupy  to  the  public,  make  it  necessary 
upon  grounds  of  public  policy  that  they  should  be  held  to  a 
more  strict  accountability  than  ordinary  bailees."*  The  lia- 
bility of  telegraph  companies  would  appear,  from  the  prepon- 
derance of  authorities,  more  nearly  to  resemble  the  liability 
of  the  common  carrier  of  passengers.* 

,  §  412.  At  least  Ordinary  Care  Required.— The  weight 
of  authority  would  authorize  parties  to  stipulate  in  reference 
to  damages  on  a  breach  of  contract,  to  use  extraordinary  care 
and  diligence  on  the  part  of  a  company,  or  on  a  breach  of 
a  contract,  insuring  the  prompt  and  correct  transmission  of  a 
message;  but  it  is  still  questionable,  if  they  can  so  contract  as 
to  relieve  themselves  from  all  care,  or  from  ordinary  care. 
For  although  the  ''  liberty  to  contract  "  is  said  to  be  "  the 
highest  policy,"  it  is  well  settled,  that  a  contract  to  relieve 
the  common  carrier  from  all  liability  for  loss  or  injury  to  the 
merchandise  he  undertakes  to  carry,  is  against  public  policy, 
and  therefore  void.    And  the  reason  for  the  distinction  between 


3  45  Barb.,  272;  s.  c,  48  N.  Y.,  132. 

*  De  Rutte  v.  N.  T.,  Albany  &  Buffalo  Tel.  Co.,  1  Daly  (N.  Y.  C.  P.),  547 
(1866).  See,  also,  in  relation  to  the  measure  of  damages,  Stevenson  v.  Mag. 
Tel.  Co.,  16  Upper  Canada  Rep.,  530;  Landsberger  v.  Mag.  Tel.  Co.,  32  Barb., 
580. 

s  For  a  discussion  of  this  subject,  see  an  article  in  2  Cent.  L.  J.,  198, 
where  it  is  maintained  that  telegraph  companies  like,  private  persons,  have  a 
right  to  contract  in  reference  to  their  liability,  without  limitation.  But  the 
authorities  cited  fail  to  sustaia  the  proposition,  without  qualification. 


TELEGRAPH  COMPANIES.  349 

Measure  of  Damages— Order  for  Salt. 

common  carriers  and  telegraph  companies  in  this  respect,  is 
not  entirely  clear. 

§413,     Measure   of  Damages— Order  for  Salt.— In 

relation  to  the  measure  of  damages,  on  general  principles,  the 
company  should  be  liable  for  such  damages  as  directly  and 
naturally  result  from  the  breach  of  the  contract  to  transmit, 
and  by  which  it  undertakes  at  least  to  use  that  diligence  and 
care  which  the  delicate  and  important  character  of  the  busi- 
ness requires,  and  which  its  patrons  may  reasonably  expect; 
and  also  to  all  such  damages  as  the  parties  contemplated,  or 
had  reason  to  contemplate,  at  the  time  of  the  contract,  as  the 
result  of  a  breach.  Thus,  where  the  message  was,  "send  5000 
sacls  of  salt  immediately,"  and  the  message,  through  the 
negligence  of  the  defendant,  a  telegraph  company,  was  chang- 
ed so  as  to  read,  "send  5000  casks  of  salt  immediately,"  and 
in  compliance  with  the  order  thus  received,  the  plaintiff  sent 
the  salt  from  Oswego  to  Chicago,  to  the  plaintiff's  agent  who 
sent  the  message;  and  it  appeared  that  the  term  "sack"  des- 
ignated a  package  of  fine  salt  of  about  fourteen  pounds 
weight,  and  the  term  "cask,"  a  package  of  coarse  salt  of  about 
320  pounds  weight,  and  that  the  salt  sent  under  such  errone- 
ous order  was  more  valuable  in  Oswego  than  in  Chicago  at 
the  time  it  was  sent,  and  that  the  plaintiff's  agent,  after  re- 
ceiving the  same  at  Chicago,  sold  it  for  the  highest  price 
which  could  be  obtained ;  it  was  held,  that  the  measure  of 
damages  adopted  in  the  court  below,  namely,  the  difference 
between  the  value  of  the  salt  at  Oswego  and  at  Chicago,  and 
the  cost  of  transportation  from  the  former  place  to  the  latter, 
was  sufficiently  favorable  to  the  defendant." 


6  Leonard  v.  New  York,  etc.,  Tel.   Co.,  41  N.   Y.,  544  (1870).    See,  also, 

Rittenhouse  v.  The  Ind.,  etc.,  Tel.  Co.,   1  Daly,  475;  Bryant  v.  The  Am. 

Tel.  Co.,  1  Daly,  576;  New  York  and  Washington  Print.  Tel.  Co.  v.  Diy- 
burg,  35  Penn.  St.,  298. 


350  THE  LAW  OF  DAMAGES. 

Doctrine  of  Hadley  v.  Baxendale  Explained  and  Applied. 

§414.  The  Doctrine  of  Hadley  v.  Baxend.ile ,  Ex- 
plained and  Applied.— Ill  considering^  the  applicability  of 
the  doctrine  of  Hadley  v.  Baxendale,''  to  the  breach  of  con- 
tracts on  the  part  of  telegraph  companies,  and  particularly  to 
the  case  under  consideration,  Earle,  Ch.  J.,  in  delivering  the 
opinion  of  the  court  in  the  above  case,  remarks:  "It  is  not 
required  that  the  parties  must  have  contemplated  the  actual 
damages  which  are  to  be  allowed;  but  the  damages  must  be 
such  as  the  parties  may  fairly  be  su])posed  to  have  contem- 
plated when  they  made  the  contract.  Parties  entering  into 
contracts,  usually  contemplate  that  they  will  be  performed, 
and  not  that  they  will  be  violated.  They  very  rarely  actually 
contemplate  any  damages  which  would  flow  from  any  breach, 
and  very  frequently  have  not  sufficient  information  to  know 
what  such  damages  would  be.  As  both  parties  are  usually 
equally  bound  to  know  and  be  informed  of  the  facts  pertain- 
ing to  the  execution  or  breach  of  a  contract  which  they  have 
entered  into,  I  think  a  more  precise  statement  of  the  rule  is, 
that  a  party  is  liable  for  all  the  direct  damages  which  l)otli 
parties  to  the  contract  would  have  contemplated  as  flowing 
from  its  breach,  if  at  the  time  they  entered  iiito  it  they  had 
bestoAved  proper  attention  upon  the  subject,  and  had  been  fully 
informed  of  the  facts.  In  this  case  then,  in  what  may  prop- 
erly be  called  a  fiction  of  the  law,  the  defendant  must  be  pre- 
sumed to  have  known  that  this  dispatch  was  an  order  for  salt, 
as  an  article  of  merchandise,  and  that  the  plaintiff  would  fill 
the  order  as  delivered;  and  that  if  the  salt  was  shipped  to 
Chicago  it  would  be  shipped  there  as  an  article  of  merchan- 
dise, to  be  sold  in  the  open  market.  And  the  market  price 
in  Chicago  being  less  than  the  market  price  at  Oswego,  that 
they  would  lose  the  cost  of  transjiortation  and  the  difference 
between  the  market  price  at  Chicago  and  the  market  price  at 
Oswego.     1  think,  therefore,  that  the  rule  of  damages  adopt- 

1  9  Exch.,  341. 


TELEGRAPH  COMPANIES.  351 

Mistake  in  Message  ordering  Bouquets— Ordering  a  Shawl. 

ed  by  the  referee  was  sufficiently  favorable  to  tlie  defendant. 
The  damages  allowed  were  certain,  and  they  were  the  proxi- 
mate, direct  result  of  the  breach." 

§415.  Mistake  in  a  Message  ordering  Bouquets- 
Damages. — So,  where  a  telegraph  company  received  a  mes- 
sage ordering  "two  hand  bouquets,"  and  the  agent  of  the 
company  erroneously  supposing  the  word  "hand"  to  be 
"hund."  and  to  stand  for  "hundred,"  delivered  it  thus  altered, 
and  the  two  hundred  bouquets  were  furnished  accordingly. 
In  an  action  brought  by  the  receiver  of  the  message  against 
the  company  for  damages  in  consequence  of  the  mistake,  it 
was  held,  that,  "though  telegraph  companies  are  not,  like 
carriers,  insurers  for  the  safe  deliv^ery  of  what  may  be  entrust- 
ed to  them,  their  obligations,  so  far  as  they  reach,  spring  from 
the  same  source,  namely,  the  public  nature  of  their  employ- 
ment, and  the  contract  under  which  the  particular  duty  is 
assumed,"  and  that  it  is  one  of  the  plainest  of  their  obliga- 
tions to  transmit  the  very  message  prescribed.  The  plaintiff, 
who  was  a  florist,  was  held  entitled  to  recover  the  loss  sus- 
tained, and  the  expenses  incurred  in  cutting  and  procuring 
the  large  number  of  flowers  required  for  the  bouquets.' 

§416.  Mistake  in  a  Message  ordering  a  Shawl- 
Damages- — So,  where  a  dispatch  was  delivered  to  a  telegraph 
company  in  Michigan,  ordering  "  one  shawl,"  and  by  a  mistake 
of  the  company  the  disjDatch  delivered  in  New  York,  was  for 
"one  hundred  shawls,"  and  in  compliance  with  the  order 
received,  the  plaintifi^  to  whom  it  was  addressed,  sent  from 
New  York  one  hundred  shawls  to  the  sender  of  the  dispatch 
in  Michigan,  where  they  arrived,  but  were  re-shipped  to  the 
consignor  at  New  York;  it  was  held,  in  an  action  against  the 
company,  by  the  party  to  whom  the  erroneous  order  was  deliv- 
ered, that  the  measure  of  damages  was  the  freight  from  New 

8  The  N.  Y.  &  Washington  Print.  Tel.  Co.  v.  Dryburg,  35  Penn.  St.,  298. 


352  THE  LAW  OF  DAMAGES. 

Delay  in  Sending  a  Message  ordering  Property  Attached— Mistalce,  etc. 

York  to  Michigan  and  back  to  New  York,  and  the  deprecia- 
tion in  the  value  of  the  shawls,  they  having  arrived  in  New 
York  after  the  shawl  season  was  over.' 

§417.  Delay  in  Sending  a  Message  ordering  Prop- 
erty attached— Damages. — In  another  case  the  message 
delivered  to  the  telegraph  company  was :  "  Due  $1,800.  Attach 
if  you  can  find  property — will  send  note  by  to-morrow's 
stage;  "  and,  owing  to  a  delay  of  the  company  in  sending  the 
dispatch  until  the  day  following  the  delivery,  the  debtor's 
property  directed  to  be  attached  by  the  message  was  all  seized 
by  other  creditors,  and  the  plaintiff  could  attach  nothing;  the 
court  held  the  company  liable  for  the  whole  debt  that  was  by 
their  negligence  lost,  as  the  direct  and  proximate  damage 
resulting  from  the  breach  of  the  contract  to  transmit  the  mes- 
sage without  unreasonable  delay." 

§418.  Mistake  in  a  Message  ordering  Stock  sold 
and  other  Stock  Purchased- — In  another  case  the  plaintiff 
in  "Washington,  by  a  message,  directed  his  brokers  in  New  York 
to  sell  five  hundred  shares  of  Michigan  Southern  Railroad 
stock,  and  purchase  five  hundred  shares  of  Hudson  River 
Railroad  stock ;  but  owing  to  a  mistake  of  the  telegraph  com- 
pany to  which  the  message  was  delivered,  the  message  deliv- 
ered to  the  brokers,  directed  them  to  buy  five  hundred  shares 
of  Michigan  Southern  Railroad  stock.  The  brokers  purchased 
the  five  hundred  shares  of  Michigan  Southern  as  directed  by 
the  erroneous  message,  at  the  morning  board  of  that  city.  The 
plaintiff,  on  discovering  the  mistake,  corrected  it  by  repeating 
the  dispatch,  which,  in  its  correct  form,  was  not  received  by 
his  brokers  till  after  the  morning  board  had  adjourned.  On 
receiving  the  telegram  thus  corrected,  the  brokers  sold  five 

'  Bowen  v.  Tlie  Lake  Erie  Tel.  Co.,  1  Am.  Law  Reg.  (N.  S.),  685. 

'  Parks  V.  The  Alta  CaL  TeL  Co.,  L3  Cal.,  422  (1859).  See,  also,  the  same 
doctrine  in  Bryant  v.  Tlie  American  Tel.  Co.,  1  Daly  (N.  Y.),  575  (1865); 
and  The  Wash.  &  N.  0.  Tel.  Co.  v.  Hobson,  15  Gratt.  (Va.),  122. 


TELEGRAPH  COMPANIES.  353 

Mistake  in  Message  ordering  Wlieat  Purchased,  etc.— Delay  in  Message,  etc. 

hundred  shares  of  Michigan  Southern  on  the  street.  It  was 
sold  at  the  highest  price  then  attainahle,  and  the  Hudson  River 
stock  purchased  at  the  best  terms  that  could  be  obtained;  but 
the  sale  thus  made  of  Michigan  Soutliern  stock,  was  less  by 
$1,750  than  the  highest  price  at  which  it  could  have  been  sold, 
had  the  message  been  correctly  received  and  in  due  time, 
and  was  less  by  $1,375  than  the  average  price  of  the  stock  at 
the  morning  board.  Judgment  was  rendered  for  the  latter 
sum,  and  on  appeal  sustained  by  the  court' 

§419.  Mistake  in  a  Message  ordering  Wheat  pur- 
chased, etc. — Damages. — And,  where  it  appeared  that  a 
dispatch  was  delivered  by  the  plaintiff  to  the  defendant  to  be 
transmitted,  directing  the  purchase  of  wheat  at  the  limit  of 
22  francs  the  hectolitre,  but  through  the  defendant's  mistake, 
the  number  "22,"  was  changed  to  "25,"  in  consequence  of 
which,  wheat  was  purchased  at  a  price  that  proved  a  loss  of 
more  than  $2,000,  the  court  held  this  loss  to  be  the  direct  and 
immediate  consequence  of  the  defendant's  mistake  and  negli- 
gence, and  that  it  furnished  the  measure  of  the  plaintiff's 
damages.  The  court  further  held  that,  although  the  defend- 
ant was  not,  like  a  common  carrier,  an  insurer  of  the  correct 
transmission  of  messages  delivered  to  it,  yet  public  policy 
required  that  it  should  be  held  to  a  stricter  accountability 
than  ordinary  bailees,  and  that,  as  the  value  of  its  services 
consisted  in  the  correctness  and  diligence  with  which  it  trans- 
mitted messages,  any  error  in  the  message,  or  unreasonable 
delay  in  its  delivery,  should  be  presumed  to  have  arisen  from 
its  negligence." 

§  420.  Delay  in  a  Message  ordering  "  Lepines"  sold 
— Damages. — In  another  case  a  message  delivered  to  a  tele- 
graph company  at  New  York,  directed  a  party  at  St.  Louis,  to 

3  Rittenhouse  v.  The  Ind.  Line  Tel.  Co.,  1  Daly  (N.  Y.),  474;  s.  c.  44  N. 
Y.,  263. 

■♦De  Rutte  v.  The  New  York  etc.,  Tel.  Co.,  1  Daly,  547.    See,  also,  Smith- 
son  V.  U.  S.  Tel.  Co.,  29  Md.,  162  (1868);  where  the  same  doctrine  is  held. 
23 


354  THE  LAW  OF  DAMAGES. 

Where,  by  Mistake,  a  Message  is  Wrongly  Directed  and  Delayed. 

"  sell  silver  lepines  for  $10 — also  others  for  less; "  but  the  dis- 
patch was  not  sent  by  the  company,  and  owin;^  to  the  fluctu- 
ations in  gold,  which  was  at  a  premium,  there  was  a  consider- 
able decline  in  the  market  before  the  arrival  of  a  letter  from 
the  plaintiff  at  'New  York,  to  the  party  to  whom  the  dispatch 
was  addressed  at  St.  Louis,  containing  the  same  instructions. 
In  a  suit  for  damages  against  the  company,  caused  by  not 
sending  the  message,  it  was  held,  that  the  defendant  was  liable 
for  the  want  of  due  diligence  and  care  in  not  sending  the 
message,  and  that,  without  being  notified  of  the  specific  pecu- 
niary value  of  the  dispatch;  that  it  was  its  duty  to  infer 
that  the  dispatch  was  of  importance  and  of  pecuniary  value 
to  the  sender  (the  plaintiff);  and  that  the  damages  should  be 
measured  by  the  decline  in  gold  which  caused  the  difference 
in  the  market  value  of  lepiiiesJ" 

§421.  Where,  by  Mistake,  a  Message  is  Wrongly 
Directed  and  Delayed, — But  where  a  message  was  delivered 
to  the  operator  at  O.,  by  the  plaintiff,  to  be  sent  to  his  agent 
at  R.,  requesting  him  to  telegraph  back  to  the  plaintiff  the 
condition  of  a  certain  petroleum  oil  well  at  R..,  belonging  to  the 
plaintiff,  and  the  operator  was  informed  by  the  plaintiff  that 
unless  an  answer  was  promptly  received,  he  should  sell  the 
well  at  a  certain  sum,  which  had,  to  the  knowledge  of  the 
operator,  been  offered  him;  and  the  ordinary  charge  for  trans- 
mitting the  message  the  whole  distance  and  over  the  lines  of 
two  companies  having  been  paid,  it  was  transmitted  to  S.,  and 
there  received  by  the  defendant,  and  transmitted  to  R. ;  but 
through  the  negligence  of  the  defendant,  it  was  wrongly 
directed,  and  did  not  reach  the  plaintiff's  agent  for  several 
days  afterwards,  but  the  defendant  had  no  knowledge  of  the 
special  purpose  of  the  message;  and  it  appeared  that  plaintiff, 

5  Strasburgh  v.  The  West.  Un.  Tel.  Co.,  N.  Y.  Sup.  Ct.  (1867).  See 
AUen's,  Tel.  Gas.,  661.  See,  also,  Tlie  U.  S.  Tel.  Co.  v.  Wenger,  55  Pa.  St., 
262  (1867). 


TELEGRAPH  COMPANIES.  355 

Whei*  Damages  are  Limited  to  Interest— Mistake— Delay. 

receiving  no  reply,  sold  the  well  at  the  offer,  but  it  also 
appeared  that  it  was  worth  more,  and  might  have  been  sold 
for  more,  if  the  message  had  been  dnlj  received;  it  was  held, 
that  the  defendant  was  not  liable  for  the  difference  between 
the  price  for  which  it  might  have  been  sold,  and  for  which  it 
was  in  fact  sold,  as  the  agent  first  receiving  the  message  was  not 
the  defendant's  agent,  and  the  message  contained  no  informa- 
tion from  which  it  could  be  inferred  that  any  special  or  pecu- 
liar loss  would  ensue  from  a  non-delivery  of  it.° 

§422.  Where  Damages  are  Limited  to  Interest- 
Mistake — Delay. — In  another  case  the  message  was,  "get 
$10,000  of  the  Mail  Company."  The  $10,000  was  in  the 
hands  of  the  Mail  Company  and  intended  by  the  person  send- 
ing the  dispatch  for  a  certain  use.  But  the  message  which 
was  addressed  to  "Landsberger,"  was  received  and  directed  to 
"Lammeyer,"  and  by  reason  thereof  some  delay  occurred,  and 
the  chance  to  use  the  money  to  a  profit,  as  intended,  was  lost. 
Of  this  special  purpose  the  defendant  (the  Telegraph  Co.)  was 
not  informed.  The  court  say:  "The  defendants  were  not 
informed  of  any  special  use  intended  to  be  made  of  this  sum 
of  money;  and  what  damage  could  they  naturally  expect  to 
follow  from  the  delay  in  the  receipt  of  it?  Clearly  the  loss 
of  the  use  of  that  sum  daring  the  time  that  its  receipt  was 
delayed;  and  the  damages  for  the  loss  of  such  use  are,  by  the 
laws  of  Xew  York,  determined  to  be  the  interest  on  the  money." 
It  was  further  held,  that  the  loss  of  contemplated  profits  from 
the  use  of  the  money,  not  received  as  directed  by  the  dispatch 
of  plaintiff',  and  the  loss  of  a  certain  sum,  as  liquidated  dam- 
ages in  consequence  of  the  defendant's  neglect,  not  having 
entered  into  the  contemplation  of  the  parties  at  the  time  the 
contract  was  made,  could  not,  under  the  rule  in  Hadley   v. 

6  Baldwin  v.  U.  S.  Tel.  Co.,  45  N.  Y.,  744.  See,  also,  Bryant  v.  Am.  Tel. 
Co.,  1  Daly,  N.  Y.,  575;  Graham  v.  Western  U.  Tel.  Co.,  1  Colorado,  239; 
Candee  v.  W.  Un.  Tel.  Co.,  34  Wis.,  471. 


?>56  THE  LAW  OF  DAMAGES. 

Damages  that  Directly  and  Naturally  Result— Damages  Ofcntemplateh. 

Baxendale^  and  Griffin  v.  Colver^  be  regarded  as  proper 
elements  of  damages.'  And  where,  as  we  have  seen,  the 
import  of  a  telegraphic  message  is  wholly  unknown  to  the 
company's  agent,  to  whom  it  is  delivered  for  transmission,  it 
cannot  be  assumed  that  he  had  in  view  any  pecuniary  loss  as 
a  natural  or  probable  result  of  a  failure  to  send  such  message, 
and  in  case  of  a  feilure  to  transmit  correctly  or  promptly, 
the  company  would  only  be  liable  for  nominal  damages,  or 
the  amount  paid  for  sending  the  message;  and  the  company 
would  not  be  liable,  under  such  circumstance,  on  account  of 
loss  sustained  by  the  advance  or  decline  in  value  of  stocks  or 
other  property.* 

§  423.  Company  Liable  for  Damages  that  Directly 
and  Naturally  Result,  etc.— It  may  be  said  that  the  gen- 
eral rule  of  damages  in  such  cases  is,  that  the  plaintiff  may 
recover  all  such  damages  as  directly  and  naturally  result  from 
the  negligence  of  the  company ;  such  as  money  paid  as  freight 
for  goods  sent  on  an  erroneous  order;  or  money  paid  for 
transmitting  the  message;  and  also,  all  such  losses  as  are  in- 
dicated by  the  message,  as  the  probable  result  of  a  failure  to 
deliver  correctly  and  with  due  diligence.* 

§424.  Damages  Contemplated. — The  company  may 
also  be  held  to  indemnify  the  parties  for  all  such  losses  as  were 
contemplated  at  the  time,  as  the  probable  result  of  a  breach." 

'9Exch.,  341. 

- 16  N.  Y.,  494. 

3  Landsberger  v.  The  Mag.  Tel.  Co.,  32  Barb.,  530.  See,  also,  Shields  v. 
Wash.  Tel.  Co.,  9  West.  L.  J.,  283;  U.  S.  Tel.  Co.  v.  Gildersleve,  29  Md.,  233. 

<  Candee  v.  W.  U.  Tel.  Co.,  supra.    Tyler  v.  W.  U.  Tel.  Co.,  supra. 

5  W.  U.  Tel.  Co.  V.  Graham,  1  Colorado,  230,  s.  c.  10  Am.  Law  Reg. 
(N.  S.),  317;  Tme  v.  Int.  Tel.  Co.,  60  Me.,  9;  ManviUe  v.  W.  U.  Tel.  Co.,  37 
la.,  214;  Candee  v.  W.  U.  Tel.  Co.,  supra;  U.  S.  Tel.  Co.  v.  Wenger,  55 
Pa.  St.,  262.  But  see,  Rittenhouse  v.  Ind.  L.  Tel.  Co.,  44 N.  Y.,  263;  where 
it  was  held,  that  if  the  company  does  not  understand  the  import  of  the 
message,  it  is  their  duty  to  inform  themselves. 

«  The  U.  S.  Tel.  Co.  V.  Wenger,  55  Pa.  St.,  262;  Baldwin  v.  The  U.  S. 
Tel.  Co.,  45  N.  Y.,  744. 


TELEGKAPH  COMPANIES.  357 


Limitation  of  Liability  by  Contract. 


And  tliey  are  liable  for  damages  in  all  cases,  for  not  sending 
messages  correctly  and  promptly,  unless  prevented  by  causes 
over  which  tliey  have  no  control,  or  which  they  could  not 
by  the  exercise  of  ordinary  care  and  diligence  avoid. 

§  425.  Limitation  of  Liability  by  Contract.— Tele- 
graph companies  may,  like  common  carriers,  impose  reason- 
able conditions  upon  their  patrons,  and  make  their  liability 
depend  upon  an  observance  of  these  conditions;  or  they  may 
contract  for  a  limited  liability.  But,  like  common  carriers, 
they  cannot  impose  conditions  or  make  contracts  to  relieve 
themselves  from  losses  resulting  from  their  own  negligence.' 
Subject  to  this  qualification,  it  is  competent  for  telegraph 
companies  to  adopt  reasonable  rules  and  regulations  restrict- 
ing their  liability  where  messages  are  not  repeated;  and  this 
restriction  may  be  by  printed  stipulations  and  conditions 
attached  to  the  message."  And  notwithstanding  printed  con- 
ditions or  contracts  to  the  contrary,  the  company  is  not  only 

'  W.  U.  Tel.  Co.  V.  Buchanan,  35  Ind.,  429;  Swetland  v.  lU.  Tel.  Co., 
27  la.,  432;  West.  U.  Tel.  Co.  v.  Graham,  1  Col.,  230;  ManviUe  v.  W.  U.  Tel. 
Co.,  supra;  Candee  v.  W.  U.  Tel.  Co.,  supra. 

=  But  it  is  maintained  that  if  they  are  common  carriers,  "they  have  no 
power  to  restrict  their  duties  or  liabilities  by  a  mere  notice,  unless  there  is 
sufficient  evidence  of  the  assent  of  their  customers  thereto,  to  create  a  con- 
tract between  them,"  etc.  Shear.  &  R.  on  Neg.,  §  567.  The  power  to  limit 
the  liability  of  common  carriers,  though  allowed  in  England,  has  been  denied 
in  this  country.  Nevins  v.  Bay  State,  etc.,  Co.,  4  Bos.,  225;  Cole  v.  Good- 
win, 19  Wend.,  251;  Western  Trans.  Co.  v.  HaU,  24  111.,  466;  Faloy  v. 
Northern  Trans.  Co.,  15  Wis.,  129;  Steel  &  Burgess  v.  Townsend,  37  Ala., 
247;  Kemball  v.  Rutland,  etc.,  R.  Co.,  26  Vt.,  247.  The  same  doctrine  has 
been  distmctly  recognized  in  Kentucky  in  relation  to  telegraph  companies. 
Camp  v.  W.  LF.  Tel.  Co.,  1  Met.  (Ky.),  164;  and  also  in  Missouri,  m  Wahn 
V.  Tel.  Co.,  37  Mo.,  472.  But  the  preponderance  of  authority  is  in  favor  of 
the  doctrine  that  the  common  carrier  may  limit  his  liability  by  a  contract  to 
that  effect,  subject  however,  to  the  qualification  that  he  cannot  be  permitted 
to  stipulate  or  contract  so  as  to  relieve  himself  from  all  liability,  or  from  the 
responsibility  of  using  at  least  reasonable  care  to  avoid  loss;  as  such  a  con- 
tract would  be  against  public  pohcy.  See,  ante,  §  338.  See  cases  collected, 
2  American  Law  Review,  615,  632,  and  in  4  American  Law  Register  (N.  S.), 
192,  199;  EUis  v.  American  Tel.  Co.,  13  AUen  (Mass.),  234. 


358  THE  LAW  OF  DAMAGES. 


Not  Insurers— Reasonable  Rules. 


liable  for  gross  negligence,  but  for  the  want  of  the  ordinary 
care  and  skill  whicli  tlie  nature  of  the  business  demands.'  But 
where  there  is  a  stipulation  or  condition  required  by  the  com- 
pany, exempting  it  from  liability  in  case  the  message  is  not 
repeated  by  order  of  tlie  sender,  and  paid  for,  tlie  burden  of 
proof  to  show  the  want  of  ordinary  care  in  case  tlie  message 
is  not  thus  repeated  is  on  the  plaintiff.  And  where  such  a 
condition  is  known  to  the  party  sending  the  message,  or  where 
he  is  bound  under  the  circumstances  of  the  case  to  take  notice 
of  it,  and  a  mistake  occurs  in  an  unrepeated  message,  the 
plaintiff  must  show  that  such  a  mistake  occurred  by  some 
fault  of  tlie  company,  and  that  it  might  have  been  avoided  by 
the  use  of  proper  care,  as  by  the  use  of  good  instruments,  or 
the  employment  of  careful  and  skillful  operators."  But,  on 
general  principles  the  burden  of  proof,  in  case  of  a  mistake 
or  a  failure  to  transmit  and  deliver  a  message  with  reasonable 
dispatch  and  with  accuracy,  would  generally  devolve  on  the 
company,  as  the  ability  to  show  that  the  failure  had  occurred 
without  their  fault  would  be  in  their  hands.^ 

§  426.    Not  Insurers— Reasonable  Rules.— In  a  recent 

case  in  New  York,  Earle,  Chief  Commissioner,  remarks: 
"Telegraph  companies  may,  in  one  sense,  be  called  common 
carriers,  as  they  are  engaged  in  public  employment,  and  are 
bound  to  transmit  for  all  persons  messages  delivered  to  them 
for  that  purpose.  But,  if  we  call  them  common  carriers  in 
this  sense,  it  does  not  follow  that  they  become  insurers,  like 
common  carriers  of  goods.  In  the  absence  of  any  special 
contract  they  do  not  insure  the  accurate  transmission  of  mes- 

3  Bimey  v.  New  York  &  Wash.  Tel.  Co.,  18  Md.,  341;  Shear.  &  Red.  on 
Neff.,  §565;  U.  S.  Tel.  Co.  v.  Gildersleeve,  29  Md,,  332. 

4  Swetland  v.  lU.  &  Miss.  Tel.  Co.,  supra;  Breese  v.  U.  S.  Tel.  Co.,  48  N. 
Y.,  132;  Wahn  v.  Tel.  Co.,  37  Mo.,  472  (1866);  Camp  v.  Tel.  Co.,  1  Met. 
(Ky.),  164;  Ellis  v.  Tel.  Co.,  13  Allen  (Mass.),  226;  McAndi-ew  v.  Tel.  Co..  17 
C.  B.,  3;  Tel.  Co.  v.  Carew,  15  Mich.,  525;  Bimey  v.  Tel.  Co.,  18  Md.,  341. 

s  Shearman  &  R.  on  Neg.,  §  559. 


TELEGRAPH  COMPARES.  359 

Omission  or  Refusal  to  send  a  Message— Rules. 

sages;  but  tliej  are  bound  to  transmit  them  with  care  and 
diligence  adequate  to  the  business  which  they  undertake.  But 
they  have  a  right  to  make  reasonable  rules  for  the  conduct  of 
their  business.  They  can  thus  limit  their  liabih'ty  for  mis- 
takes not  occasioned  by  gross  negligence  or  willful  misconduct, 
and  this  they  can  do  by  notice,  brought  home  to  the  sender  of 
the  message,  or  by  special  contract."  * 

§  427.  Omission  or  Refusal  to  Send  a  Message— Rules. 

— It  has  been  held  that  the  entire  omission  or  refusal  to  send 
a  message,  is  not  affected  by  a  provision  in  the  printed  terms 
of  the  company,  restricting  their  liability  for  delays,  mistakes, 
etc'  And  a  condition  prescribed  by  a  telegraph  company,  and 
printed  in  their  blank  forms  for  dispatches,  that  they  will  not 
be  liable  for  damages  if  the  claim  is  not  presented  within  sixty 
days  from  the  sending  of  the  message,  is  held  to  be  reasonable 
and  binding  on  one  sending  a  telegram  on  the  printed  form.' 
But  a  condition  printed  in  the  "  night  message  blanks  "  of  a 
telegraph  company,  "  that  the  company  shall  not  be  liable  for 
mistakes  or  delaj's  in  the  transmission  or  delivery,  or  for  non- 
delivery of  any  message  beyond  the  amount  received  by  the 
company  for  sending  the  same,"  was  held  not  to  be  reasonable, 
and  not  to  exempt  the  company  from  liability  in  a  larger  sum. 
Such  a  limitation,  if  legal,  would  exempt  the  company  from 
gross  or  even  ordinary  negligence,  and  would  clearly  be  against 
public  policy.  And  where  a  message  was  written  on  such  a 
blank  by  the  sender,  ordering  a  cargo  of  corn  to  be  shipped, 
but  the  message  was  not  delivered,  and  in  consequence  the 
sender  failed  to  obtain  the  corn  at  the  terms  j)reviously  offered; 
it  was  held,  that  the  measure  of  damages  was  the  difference 
between  the  price  of  the  corn  as  offered,  and  that  which  he 

«  Breese  v.  U.  S.  Tel.  Co.,  48  N.  Y.,  132  (1871),  affirming  45  Barb.,  274. 

7  Baldwin  v.  U.  S.  Tel.  Co.,  54  Barb..  505;  45  N.  Y.,  744. 

8  Wolf  V.  W.  U.  Tel.  Co.,  62  Pa.  St.,  83;  W.  U.  Tel.  Co.  v.  Buchanan,  35 
Ind.,  429.    See,  also,  Hibbard  v.  W.  U.  Tel.  Co.,  33  Wis.,  558. 


360  THE  LAW  OF  DAMAGES. 


Inferences— Connecting  Lines— Diversity  of  Decisions,  etc. 

would  have  been  obliged  to  pay  for  it  at  the  same  place,  after 
notice  of  failure  to  deliver  the  message." 

§  428.  Inferences. — From  the  foregoing  cases  it  is  evi- 
dent that  the  rule  of  damages  is  the  same  as  on  the  breach  of 
other  contracts,  namely,  that  the  party  injured  may  recover 
all  such  damages  as  are  the  direct,  natural,  and  necessary  con- 
sequences of  a  breach,  and  all  such  as  should  have  been  con- 
templated by  the  parties  at  the  time  of  the  contract,  as  a 
result  of  a  breach  of  it,  "interpreting  the  contract  in  the  light 
of  the  circumstances  under  which,  and  a  knowledge  of  tlie 
parties  of  the  purpose  for  which,  it  was  made.'"" 

§429.  Where  there  are  Connecting  Lines,  Divers- 
ity of  Decisions  as  to  Liability. — There  seems  to  be  much 
diversity  in  the  decisions  as  to  the  liability  of  a  telegraph 
company  receiving  a  message  to  transmit  over  its  own  and  the 
lines  of  other  companies,  where  the  injury  results  from  the 
negligence  of  the  latter.  The  principle  involved  is  the  same 
as  that  which  is  applicable  to  common  carriers  under  similar 
circumstances,  and  the  rule  of  liability  should  be  the  same. 
Thus,  in  England  the  first  carrier  (and  for  a  similar  reason  the 
first  receiver  of  a  message),  is  the  only  one  liable  to  the  con- 
signor.' But  in  Massachusetts,  Connecticut  and  Yermont, 
the  rule  is  directly  opposite.^  And  in  New  York  the  decisions 
in  difierent  courts  seem  to  have  been  adverse  to  each  other.^ 

9  True  V.  Int.  Tel.  Co.,  60  Me.,  9.  See,  also,  Young  v.  W.  U.  Tel.  Co.,  34 
N.  y.,  390;  Hibbard  v.  W.  U.  Tel.  Co.,  6-M/^ra. 

'°  Baldwin  v.  The  U.  S.  Tel.  Co.,  45  N.  Y.,  744. 

'  Muschamp  v.  Lancaster,  etc.,  R.  R.  Co.,  8  Mees.  &  W.,  421;  Scottliom 
V  South  Stat.  R.  R.  Co.,  8  Exch.,  341;  25  Eng-.  L.  and  Eq.,  287;  Bristol,  etc., 
R.  R.  Co.  V.  CoUins,  7  H.  L.  Cas.  194;  5  Huriston  &  Norman,  969,  affirming 
S.  C,  11  Exch.,  790;  and  reversing  s.  c,  1  Hurist.  &  N.  517;  Coxon  v.  Grt. 
West.  R.  R.  Co.,  5  H.  &  N.,  274;  Mytton  v.  Mid.  R.  R.  Co.,  4  H.  &  N.,  615. 

^  Nutting  V.  Conn.  Riv.  R.  R.  Co.,  1  Gray,  502;  Hood  v.  N.  Y.  &  N.  H. 
R.  R.  Co.,  22  Conn.,  1;  Id.,  509;  Farmers  &  Mech.  Bank  v.  Champlain  Trans. 
Co.,  23  Vt.,  186. 

3  De  Rutter  v.  Albany,  etc.,  Tel.  Co.,  1  Daly  547,  where  it  is  held  that  a 
telegraph  company  receiving  a  message  directed  to  a-  place  beyond  its  lines. 


TELEGEAPH  COMPANIES.  361 

Can  a  Party  to  whom  a  Message  is  sent  Maintain  an  Action? 

§  430.  Can  the  Party  to  whom  a  Message  is  sent 
3Iaintain  an  Action? — Some  controversy  Las  also  existed  in 
reference  to  the  question  whether  the  party  to  whom  the  mes- 
sage is  sent  can  maintain  an  action  on  the  contract,  express  or 
implied,  made  between  the  sender  and  the  company.  But 
there  would  appear  to  be  no  doubt  that  the  action  can  be 
maintained  by  such  party  for  the  negligence,  resulting  in  loss, 
as  for  a  tort.*  And  in  New  York,  as  well  as  some  other  states, 
he  may  sue  on  the  contract.^ 

and  taken  payment  for  the  entire  service,  is  presumptively  liable  to  the  sender 
for  the  neghgence  of  all  connecting  lines.  But  see  countrary  opinion,  Bald- 
win V.  U.  S.  Tel  Co.,  45  N.  Y.,  744. 

4  N.  T.  &  Wash.  Print.  Tel.  Co.  v.  Dryburg,  35  Penn.  St.,  298.  See,  also, 
Baldwin  v.  U.  S.  Tel.  Co.,  supra;  Elwood  v.  The  W.  U.  Tel.  Co.,  45  N.  Y., 
549.  In  England,  it  is  held  that  the  receiver  of  the  message  cannot  main- 
tain an  action  on  the  contract.  Playford  v.  U.  K.  Tel.  Co.,  4  L.  R.,  Q.  B., 
706;  38  L.  J.,  Q.  B.,  249;  10  B.  &  S.,  759. 

s  Lawrence  v.  Fox,  20  N.  Y.,  268;  Burr  v.  Beers,  24  N.  Y.,  178;  Steman  v. 
Hai-rison,  42  Pa.  St.,  49. 

The  liability  of  telegraph  companies  is  sometimes  fixed  by  statute.  A 
■writer  on  the  question  under  consideration,  in  The  American  Law  Review, 
Vol.8,  p.  458,  says: 

''The  EngUsh  telegraph  act  provides  'that  the  use  of  any  telegraph  and 
apparatus  erected  or  formed  under  the  provisions  of  this  act  for  the  purpose 
of  receiving  and  sending  messages  shall  *  *  *         be  open 

for  the  sending  and  receiving  of  messages  by  all  persons  alike,  without  favor 
or  preference.'  See,  Playford  v.  United  Kingdom  Tel.  Co.,  Law  R.  4  Q.  B., 
707.  note.  In  Playford  v.  United  Kingdom  Telegraph  Co.,  just  cited,  it  was 
held,  in  an  action  by  the  receiver  of  an  erroneous  message,  that  this  act  had 
not  affected  the  relation  of  companies  to  th6se  to  whom  dispatches  are  trans- 
mitted. The  telegraph  act  of  1868  contains  no  provision  on  this  point;  and 
the  same  is  true  of  the  later  acts;  25  &  26  Vict,  c,  131.  §  61;  31  &  32  Vict. 
c,  110;  32  &  33  Vict,  c,  73.  §  23. 

The  IMassachusetts  act  provides  that  'every  company  shall  receive  dispatch- 
es from  and  for  other  telegraph  lines,  companies,  and  associations,  and  from 
and  for  any  person;  and  on  payment  of  the  usual  charges  *  *  * 
shall  transmit  the  same  faithfully  and  impartially.'  And  for  every  willful 
neglect  the  company  are  declared  liable  to  a  penalty  of  one  hundred  dollars 
to  the  'person,  association,  or  company  sending  or  desiring  to  send  the  dis- 
patch.' Gen.  Stats.,  c.  64,  §  10. 

The  statutes  of  New  York,  2  Rev.  Stats.,  740,  §  11,  5th  ed;  Michigan,  1 
Comp.  Laws,  1871,  c.  80,  §  14;  Missouri,  1  Wagu.  Sts.,  824,  §  10;  and 


362  THE  LAW  OF  DAMAGES. 


Conclusions  Deducible  from  Decisions. 


§  431.    Conclusions  Deducible  from  the  Decisions  — 

1.  It  is  evident  from  the  weight  of  authority  as  well  as  from 
general  reasoning,  that  the  liability  of  a  telegraph  company  is 
not  so  strict  as  that  of  common  carriers  of  merchandise.  The 
nature  of  the  business  is  materially  dliferent  and  is  suggestive 
of  many  contingencies  t^  which  no  other  business  is  subject; 
although  the  knowledge  gained  of  the  science  of  telegraphy, 
and  the  perfection  of  the  means  and  instruments  now  employed 
render  the  accurate  transmission  of  messages  more  certain 
than  in  former  years;  still,  causes  which  the  company  cannot 

Maryland,  1  Code,  p.  171,  §  117,  contain  provisions  and  prescribe  penalties 
substantially  the  same  as  those  in  this  act. 

The  statute  of  Pennsylvania  simply  requires  the  companies  to  transmit 
dispatches  offered,  under  a  penalty  for  refusal,  with  no  provision  for  faithful 
performance.    Bright.  Purd.  p.  951,  §  1. 

In  Maine,  it  is  provided  that  'for  any  error  or  unnecessary  delay  in  writing 
out,  transmitting  or  delivering  a  dispatch  *  *  *  making  it  less  valuable 
to  the  person  interested  therein,'  the  company  'shall  be  Uable  for  the  whole 
amount  paid  on  such  dispatch,  and  they  shall  transmit  all  dispatches  in  the 
order  they  are  received,  under  a  penalty  of  one  hundred  dollars,  to  be  re- 
covered mlhcost  by  the  pei-son  whose  dispatch  is  willfully  postponed;'  Rev. 
Sts.  C.53,  §1. 

Many  of  the  states  are  without  statutory  provisions  on  this  particular 
point;  and  no  act  has  been  found  giving  a  right  of  action  to  the  person  to 
whom  the  message  is  sent,  either  for  non-delivery  or  for  error  in  transmission, 
excepting  that  of  Maine  above  quoted.  It  must  be  conceded  that  in  that 
state  the  receiver  of  the  message,  if  he  be  'the  person  interested  therein,' 
has  a  right  of  action  to  the  amount  paid  for  transmission.  But  this  would 
perhaps  cover  no  more  than  the  case  of  a  dispatch  transmitted  by  the  plain- 
tiff's agent;  and  if  so,  it  abridged  rather  than  enlarges  the  liability  of  the 
telegraph  company.  For,  apart  from  such  a  provision,  the  company  must 
be  liable  for  the  actual  loss  to  the  plaintiff,  where  the  sender  acts  as  agent 
in  the  premises.  But  this  article  is  not  predicated  of  such  cases.  The  other 
branch  of  the  question— whether  the  receiver  of  a  message  can  sue  the 
telegraph  company  for  an  en-or  in  transmission— is  not  so  free  from  diffi- 
culty. In  this  country  there  is  great  unanimity  in  holding  the  companies  liable. 
New  York  &  Washington  Tel.  Co.  v.  Dryburg,  35  Penn.  St.,  298;  Bowen  v. 
Lake  Erie  Tel.  Co.,  1  Am.  Law  Reg.,  685;  DeRutte  v.  New  York,  Albany, 
etc.,  Tel.  Co.,  1  Daly.  547;  Rose  v.  United  States  Tel.  Co.,  3  Abb.  Pr.,  N.  S., 
408;  Elwood  v.  W.  U.  Tel.  Co.,  45  N.  Y.,  549;  EUis  v.  Am.  Tel.  Co.,  13 
Allen,  226.  In  England  the  contrary  is  held.  Playford  v.  United  Kingdom 
Tel  Co.,  Law  R.,  4  Q.  B.,  706;  10  B.  &  S.,  759. 


TELEGEAPH  COMPANIES.  363 

Conclusions  Deducible  from  Decisions. 

control,  may  occur  to  interrupt  the  transmission  of  a  message 
or  affect  its  accuracy.  The  electric  current  may  be  broken  so 
as  to  obstruct  communication;  words  of  different  signification 
may  be  represented  by  characters  so  similar  that  errors  in 
transcribing  may  occur  without  the  fault  of  the  company. 
These  and  like  contingencies  are  at  the  risk  of  the  sender, 
unless  the  company  undertake  to  insure  the  correct  transmis- 
sion. But  a  neglect  to  send  a  message,  or  to  send  one  within 
a  reasonable  time,  where  the  delay  is  not  caused  by  circum- 
stances over  which  they  have  no  control,  or  which  could  not 
be  avoided  by  the  exercise  of  reasonable  care;  or  an  error  in 
transcribing  a  message  through  want  of  like  care,  renders  the 
company  liable  for  the  damages  that  result  therefrom;  and 
errors  of  that  character  are  at  least  presumptive  evidence  of 
neglect  and  want  of  care,  and  suflBcient  to  cast  the  burden  of 
proof  upon  the  company  to  show  that  they  occurred  without 
their  fault. 

2.  "While  the  company  may  relieve  itself  from  unusual  haz- 
ards or  the  duty  of  using  more  than  ordinary  care  by  a  con- 
tract, or  perhaps,  by  a  notice  to  that  effect,  where  it  is  brought 
to  the  knowledge  of  the  sender,  and  may  impose  conditions 
for  their  responsibility  as  insurers  of  the  correct  transmission 
of  messages  received  for  that  purpose,  they  cannot  stipulate 
so  as  to  relieve  themselves  from  responsibility  for  damages 
resulting  from  gross  negligence,  or  the  duty  of  using  at  least 
ordinary  care  and  diligence. 

3.  Although  statutes  may  provide  that  telegraph  companies 
shall  be  responsible  for  all  damages  that  result  from  errors  in 
transmitting  messages,  still  they  may  contract  with  parties 
and  impose  reasonable  conditions  in  reference  to  their  liability, 
and  may  exact  extra  compensation  for  insuring  the  correct 
transmission  of  the  same. 

4.  In  all  cases  where  loss  is  sustained  by  a  party,  by  reason 
of  the  want  of  ordinary  care  and  diligence  on  the  part  of  the 


364  THE  LAW  OF  DAMAGES. 


Conclusions  Deducible  from  Decisions. 


company,  they  are  liable  for  tlie  direct  and  natural  conse- 
quences of  such  want  of  care  and  diligence,  and  to  such  further 
damages  as  the  parties  contemplated  or  had  reason  to  contem- 
plate at  the  time  of  the  contract,  as  the  probable  result  of  a 
breach  of  the  same. 

5.  Although  telegraph  companies  are  not,  like  common  car- 
riers of  merchandise,  insurers  of  the  correct  transmission  of 
messages,  they  are  bound  to  use  that  high  degree  of  care  and 
diligence  which  is  required  from  the  peculiar  nature  and 
importance,  and  the  delicate  character  of  the  duties  assumed 
by  them,  and  which  they  undertake  to  perform." 

^The  author  of  a  well  written  article  on  "The  Law  of  Telegraphs  and 
Telegrams,"  in  the  American  Law  Register  of  February,  1865,  deduces  the 
following  propositions  from  the  cases  referred  to  in  the  article :  1 .  "  If  a  tele- 
graph company  holds  itself  out  to  carry  messages  in  the  ordinaiy  way,  it 
takes  upon  itself  a  public  employment  analogous  to  that  of  a  common  carrier. 
Although  it  may  not  be  in  all  respects  an  insurer,  it  is  bomid  to  exercise  the 
utmost  diligence  and  good  faith.  When  a  statute  requires  it  to  transmit 
messages  for  all  who  may  send  them,  the  case  is  still  more  clear. 

2.  "The  company  may  on  the  like  analogy  make  reasonable  conditions. 
It  may  require  important  messages  to  be  repeated  at  an  additional  charge  as 
a  condition  to  its  liabiUty.  This  is  but  little  more  than  providiBg  that  an 
unimportant  message  may  be  sent  for  a  small  price,  and  one  that  is  impor- 
tant may  be  safely  transmitted  for  a  larger  sum.  This  increased  sum  must 
be  intended  for  the  additional  labor  required,  and  risk  run.  and  must  there- 
fore be  reasonable  in  amount.  The  same  result  is  reached  if  the  statute  per- 
mits the  company  to  establish  rules  and  regulations,  for  it  is  imphed  that 
such  regulations  should  be  reasonable. 

3.  "The  condition  refeiTed  to  in  the  second  proposition  does  not  cover  cases 
where  neghgence  has  been  established,  as  where  the  agent  negligently  fails 
altogether  to  transmit  the  message,  or  where  he  of  his  own  vohtion  substi- 
tutes another  message  in  room  of  the  one  sent  on  the  erroneous  supposition 
that  such  was  the  sender's  intention. 

4.  ' '  The  receiver  of  the  message  is  in  a  different  position  from  the  sender. 
Assuming  that  the  company  could  stipulate  with  the  sender  not  to  be  respon- 
sible for  the  acts  of  its  agents,  such  stipulation  would  not  bind  the  receiver 
who  could  not  know  whether  the  message  had  been  repeated  or  not.  The 
company  cannot  shield  itself  from  an  action  by  the  receiver  on  the  ground 
that  it  is  the  agent  of  the  sender,  for  the  maxim  respondeat  superior  does 
not  apply  to  the  case  of  misfeasance."    T.  W.  D.,  in  4  Am.  L.  R.,  199. 


COYENANTS— REAL  ESTATE.  365 

Breaches  on  Contract  and  Covenants, 


CHAPTEB  XYI. 


DAMAGES   O^  BREACHES  OF   CO^^TRACTS  AND 
COYEXANTS  RELATING  TO  REAL  ESTATE. 

Section  442.    General  Principles— Damages  on  Covenants. 

443.  The  Covenant  of  Seizen— Authority  to  Convey— Damages 

for  a  Breach— General  Rule. 

444.  "Where  the  Damages  may  be  less. 

446.  General  Doctrine  where  there  is  no  Seizin  in  the  Grantor. 

447.  The  English  Rule— American  Doctrine, 

449.  "Wliere  there  is  a  Partial  Breach  of  the  Covenant  of  Seizin. 

450.  Damages  for  a  Breach-of  the  Covenant  against  Incumbrances. 

451.  Nominal  Damages— "When  Recoverable. 

452.  "When  the  Incumbrance  cannot  be  Removed— Damages. 

453.  "Where  the  Incumbrance  has  been  Removed  by  the  Grantee. 

455.  "Where  the  Grantee  Receives  Money  from  the  Grantor  to 

Remove  the  Incumbrances. 

456.  The  Maximum  Amount  Recoverable. 

460.  Covenants  for  Quiet  Enjoyment  and  "Warranty. 

461.  The  Damages  on  a  Breach,  Consideration  and  Interest. 

462.  States  where  the  "Value  at  the  Time  of  the  Eviction  Prevails. 

463.  Arguments  in  favor  of  the  Consideration  and  Interest,  as  a 

Rule. 

464.  Arguments  in  favor  of  the  "Talue  at  the  Time  of  Eviction. 

465.  The  Duty  of  the  Author— His  "Views  of  the  Question. 

466.  Interest  as  Damages. 

467.  The  Rule  as  to  Costs  and  Counsel  Fees  in  the  Eviction  Suit, 

as  an  Element  of  Damages. 

475.    "Where  the  Eviction  is  only  Partial. 

477.    "Where  the  Grantee  Purchases  the  Superior  Title. 


366  THE  LAW  OF  DAMAGES. 

General  Principles— Damages  on  Covenants. 

479.  Executory  Contracts  for  the  Sale  of  land. 

480.  "Where  the  Breach  is  on  the  part  of  the  Vendor. 

481.  "Where  the  "Vendor  Acts  in  Good  Faith— Rule. 

482.  General  Doctrine. 

484.    Illustrations  of  the  Rule    of  Damages  in  case  the  "Vendor 
acts  Fraudulently  or  in  Bad  Faith. 

495.  The  Principles  of  Hadley  v.  Baxendale  Applied. 

499.  Delay  in  the  Performance. 

500.  Partial  Breach. 

501.  Rule  in  Special  Cases. 

507.  "Where  a  Third  Party  is  to  Make  Title. 

508.  "Where  the  "Vendee  Fails, 

509.  Damages  where  the  Grantor  Tenders  a  Deed. 

510.  Rescission  when— and  Damages  on. 

511.  "When  the  Purchaser  has  given  Notes  and  has  Possession. 

512.  Damages  for  False  Representation  and  "Warranty. 

513.  Defense  of  a  Purchaser  on  the  Ground  of  Fraud. 

514.  Breach  of  the  Stipulations  in  the  Covenants  of  a  Lease. 

515.  For  "Withholding  Possession. 

516.  In  Case  of  the  Eviction  of  the  Tenant. 
518.  Agreement  to  Repair, 

§  442.    General  Principles— Damages  on  Covenants. 

— The  damages  on  breaches  of  contracts  or  covenants  rehiting 
to  real  estate,  require  particular  consideration,  not  only  on 
account  of  the  frequent  questions  which  arise  in  reference 
thereto,  and  the  magnitude  of  the  interests  involved,  but  on 
acccount  of  the  various  rules  adopted  in  reference  to  the 
measure  of  damages  in  such  cases,  in  the  different  states. 

It  may  be  observed  that  these  agreements  are  usually  under 
seal,  and  that  this  mode  of  executing  important  contracts, 
especially  relating  to  lands,  originated  when  the  ability  to 
write  was  not  common.*  Instruments  executed  in  this  man- 
ner were  of  a  higher  character  than  simple  agreements,  either 
by  parol  or  in  writing.  But  there  would  seem  to  bo  no 
sound  reason  why  the  distinction  at  common  law,  between 

•  2  Black.  Com,,  305. 


COYENANTS— EEAL  ESTATE.  367 

General  Principles— Damages  on  Covenants. 

simple  agreements  in  writing  and  those  under  seal  should 
longer  continue. 

The  seal  at  common  law  is  conclusive  evidence  of  a  con- 
sideration, but  in  some  of  the  states,  by  statute,  private  seals 
have  been  abolished,  and  the  consideration  of  the  instrument 
is  opened  to  inquiry.'*  And  the  rule  of  damages  on  a  breach 
of  an  agreement,  whether  under  seal  or  not,  is  the  same. 
Questions  as  to  the  measure  of  damages  relating  to  real 
estate,  usually-  arise  out  of  breaches  of  the  agreements  or  cov- 
enants contained  in  deeds  of  conveyance,  or  executory  con- 
tracts to  convey,  or  leases. 

We  will  first  consider  those  usually  found  in  deeds  of  con- 
veyance in  fee.  These  are:  1.  That  of  seizin  and  of  good 
right  and  lawful  authority  to  convey.  2.  That  of  freedom 
from  incumbrances.  3.  That  the  grantee  shall  quietly  enjoy. 
4.  The  covenant  to  warrant  and  defend  against  all  lawful 
claims.  The  general  rule  is,  that  the  grantee  cannot  recover 
substantial  damages  till  he  has  sustained  actual  injury.  For 
instance,  if  at  the  time  of  a  conveyance,  with  full  covenants, 
the  grantor  was  not  lawfully  seized,  or  the  premises  were  not 
free  from  incumbrances,  there  would  be  a  breach  of  the  cov- 
enants at  the  time  of  conveyance ;  but  the  grantee,  where  he  is 
placed  in  possession  and  enjoys  actual  seizin,  or  where  he  has 
not  paid  off  the  incumbrances,  where  there  is  a  breach  of  the 
covenant  against  incumbrances,  can  only  recover  nominal 
damages  until  injured  hy  an  ouster f  and  in  the  case  of  the 
other  covenants  there  can  usually  be  no  breach,  until  actual 

»  Code  of  Iowa  (1873),  383;  Wmiams  v.  Haines,  27  Iowa,  251. 

3  Baxter  V.  Bradbury,  20  Me.,  260;  Overhiser  v.  McCollister,  10  Ind.,  41; 
Nosier  v.  Hunt,  18  la.,  212;  Hacker  v.  Blake,  17  Ind.,  97.  And  where  the 
vendee  goes  into  possession  under  the  deed,  and  his  title  is  rendered  perfect 
by  the  act  of  Hmitation,  although  there  was  a  breach  of  the  covenant  of 
seizin,  he  can  only  recover  nominal  damages.  Wilson  v.  Forbes,  2  Dev.  (N. 
C.  L.),  80;  Cowan  V.  SiUiman,  4Id.,  46.  And  where  there  was  no  consideration 
for  the  deed,  only  nominal  damages  can  be  recovered.  Nutting  v.  Herbert, 
35  N.  H.,  120. 


368  THE  LAW  OF  DAMAGES. 

Covenant  of  Seizin— Authority  to  Convey— Damages  on  a  Breach— Rule. 

ouster  or  eviction  bj  a  paramount  title.     We  will  consider  the 
measure  of  damages  on  breaches  of  these  covenants. 

§  443.  Of  the  Covenant  of  Seizin— Authority  to  Con- 
vey—Damages for  a  Breach— General  Rule-— These  stip- 
ulations are  substantially  the  same;  they  amount  to  a  cove- 
nant that  the  grantor  has  such  a  seizin  that  the  land  in  fee  will 
pass  bj  the  deed."  Where  the  grantee  receives  no  title,  the 
general  rule  of  damages  is  the  consideration  money  with 
interest;^  and  in  addition  thereto,  where  the  grantee  has  been 
compelled  to  bring  suit  to  recover  the  land,  or  to  defend  the 
same  against  the  claims  of  the  owner,  especially  where  the 
grantor  had  notice  thereof  and  refused  to  defend  the  same,  and 
the  suit  was  prosecuted  or  defended  by  the  grantee  in  good 
faith,  the  costs  incurred  in  the  prosecution  or  defense,  as  the 
case  may  be,  including  counsel  fees,  may  be  recovered."  This 
is  on  the  ground  that  as  no  title  to  the  land  passed  by  the 
defendant's  deed  to  the  plaintiff,  he  has  lost  no  land  by  the 
breach  of  the  contract;  but  he  has  lost  the  consideration  money 
paid  and  interest,  and  the  expenses  of  the  former  suit,  which 
he  should  recover  back. 

*  Willard  v.  TwitcheU,  1  N.  H.,  177. 

s  Bickford  v.  Page,  2  Mass.,  455;  Caswell  v.  Wendell,  4  Id.,  108;  Chapel 
V.  Bull,  17  Id.,  213;  Jenkins  v.  Hopkins,  8  Pick.,  346;  Smith  v.  Strong,  14 
Id.,  128;  Lacy  V.  Marian,  37  Ind.,  168;  Farmers'  Bank  v.  Glenn,  68  N.  0., 
35;  Vale  v.  Junction,  R.  Co.,  1  Cin.  (0.),  571;  4  Kent's  Com.,  475,  et  seq.; 
Foster  v.  Thompson,  41  N.  H.,  373;  Nutting  v.  Herbert,  35  Id.,  120;  Brant 
V.  Foster,  5  la.,  287;  Park  v.  Cheek,  4  Cold.  (Tenn.),  20,  where  it  was  also 
held  that  where  the  consideration  and  interest  has  been  re-paid,  the  grantor 
is  entitled  to  a  re  conveyance.  Blossom  v.  Knox,  3  Chand.  (Wis.),  295; 
Phipps  V.  Tarpley,31  Mo.,  433;  Blake  v.  Bumham.  29  Vt.,  437. 

6  Staats  V.  Ten  Eyck,  3  Caine,  111;  Pitkin  v.  Leavitt,  13  Vt.,  379;  Seamour 
V.  Harlan  3  Dana.  (Ky.),  415;  Dale  v.  Shively,  8  Kans.,  276;  4  Kent's  Com., 
534;  Yokum  v.  Thomas,  15  la.,  67,  where  it  was  also  held  that  expenses  in 
the  suit  by  the  grantee  to  quiet  the  title  to  the  land,  could  not  be  recovered, 
unless  the  grantee  should  have  first  demanded  proceedings  of  his  grantor  for 
that  purpose.  See,  also,  Kennison  v.  Taylor,  18  N.  H.,  220;  Baxter  v.  Brad- 
bury, 20  Me.,  260,  where  it  was  held,  that  where  the  general  rule  would 
not  be  equitable  it  would  not  be  apphed.  See,  also,  3Pars.  on  Con.,  pp.  164, 
and 224,  et  seq.;  Rawle  on  Cov.,  pp.  89,  94,  326,  et  s^. 


COYENANTS— EEAL  ESTATE.  369 

Where  Damages  may  Toe  Less. 

§  444.  Where  the  Damages  mav  be  Less.— It  should, 
however  be  remembered,  tliat  the  fundamental  rule  in  all 
actions  for  breaches  of  contracts  or  agreements  relating  to  real 
estate,  is  that  of  compensation;  and  where  it  is  apparent  that 
the  plaintiif's  loss  is  really  less  than  the  whole  purchase 
money  or  consideration  paid,  he  will  be  limited  to  the  actual 
loss  sustained.'  Thus,  where  the  grantors  were  seized  of  two- 
sixths  of  the  premises,  and  onlj^  had  a  life  estate  in  the 
remainder,  it  was  held,  that  the  damages  for  the  breach  of 
the  covenant  of  seizin  in  such  a  case,  was  not  the  four-sixth 
part  of  the  purchase  money  or  consideration  paid,  but  that 
amount,  less  the  value  of  tlie  estate,  during  the  lives  of  the 
grantors;^  and  the  value  of  such  life  estate  may  be  estimated 
by  tables  of  expectation  of  human  life,  recognized  as  author- 
ity, such  as  the  "  Carlisle  Life  Tables,"  and  the  life  tables  of 
Dr.  Wiggles  worth." 

So,  in  Maine,  where  in  an  action  on  this  covenant,  it 
appeared  there  was  an  outstanding  title  at  the  time  of  the  con- 
veyance, and  that  the  plaintiff  after  seventeen  years  occupation 
of  the  premises  conveyed,  purchased  the  same;  it  was  held, 
that  he  was  entitled  to  recover  only  the  amount  paid  to  per- 
fect the  title,  with  interest  from  the  time  it  was  paid." 

§  445.  In  Kew  York,  where  the  grantor  being  a  tenant  for 
life  with  remainder  over,  conveyed  with  a  covenant  of  seizin 
in  fee,  and  the  grantee  had  been  in  possession  from  the  time 
of  the  conveyance,  the  plaintiff,  in  a  suit  on  this  covenant 
against  the  grantor,  was  only  allowed   to   recover   the  con- 


7  Hemden  v.  Harrison,  34  Miss.,  486.    See,  also,  Wirting  v.  Nissley,  13 
Pa.  St.,  650;  Nutting  v.  Herbert,  37  N.  H.,  346;  Sedg.  on  Dam.,  176. 

8  Guthrie  v.  Pugsley,  12  Johns.  R.,  125. 

9  MiUs  V.  CatUn,  22  Vt.,  98;  Donaldson  v.  The  M.  &  M.  R.  R.  Co.,  18  la., 
280. 

">  Spring  V.  Chase,  22  Me.,  505. 

24 


370  THE  LAW  OF  DAMAGES. 

Wliere  Damages  may  be  Less. 

sideration  money  without  interest,  less  the  value  of  the  life 
estate." 

In  Maine,  where  there  was  a  breach  of  the  covenant,  and 
the  grantor  subsequently  acquired  the  title  which  inured  to 
the  benefit  of  the  grantee,  who  was  in  possession  of  the  prem- 
ises, and  whose  possession  had  not  been  disturbed;  it  was  held, 
in  an  action  for  a  breach  of  the  covenant,  that  the  plaintiff 
was  only  entitled  to  recover  nominal  damages."' 

And,  in  Illinois,  where  the  grantor,  after  a  breach  of  the 
covenant,  and  even  after  suit  brought  for  a  breach,  acquired  the 
title,  it  was  held,  that  such  subsequently  acquired  title  inured 
to  the  benefit  of  the  grantee,  and  went  in  mitigation  of  dam- 
ages." 

So,  in  California,  it  is  held,  that  where  the  covenantee  after 
eviction  has  purchased  the  paramount  title,  the  measure  of 
damages  is  the  sum  actually  and  in  good  faith  paid  therefor, 
and  the  amount  expended  in  defending  the  possession,  pro- 
vided such  damages  in  no  case  exceed  the  purchase  money  and 
interest." 

So,  in  Iowa,  where  a  failure  of  the  title  has  been  such  as  to 
constitute  a  technical  breach  of  a  covenant  of  seizin,  but  not 
such  as  to  visit  upon  the  purchaser  any  loss  of  the  lands, 
he  is  only  entitled  to  nominal  damages  in  an  action  thereon; 
and  he  cannot  recover  as  damages  the  amount  of  the  con- 
sideration paid."      The   principle  is  well  illustrated  by  the 

"  Turner  v.  Livingston,  12  Wend.,  83.  And,  in  Connecticut,  where  the 
grantor  was  ■  seized  of  a  life  estate,  it  was  held,  that  the  value  of  the 
estate  should  be  deducted  from  the  consideration  and  interest.  Lockwood 
V.  Sturdivant,  6  Conn.,  373. 

'=  Baxter  V.  Bradbuiy,  20  Me.,  260.  See,  also,  Whitting  v.  Dewey,  15 
Pick.,  428;  Overhiser  v.  McCallister,  10  Ind.,  41. 

'3  King  V.  GHson,  32  lU.,  348. 

'4  McGary  v.  Hastings,  39  Cal.,  360.  See,  also,  same  doctrine,  Cornell  v. 
Jackson,  3  Gush.,  506,  and  Lawless  v.  CoUier,  19  Mo.,  480. 

»s  Nosier  v.  Hunt,  18  la.,  212.  See,  also,  Barber  v.  Corbert,  adm'r,  28 
la.,  317. 


COYENxiNTS— EEAL  ESTATE.  371 

General  Doctrine  where  there  is  no  Seizin  in  the  Grantor. 

reasonings  of  the  court  in  Baxter  v.  Bradbury^  above  cited. 
The  court  in  that  case  say:  "The  rules  which  have  been 
established  to  determine  the  measure  of  damages  upon  the 
breach  of  covenants  in  deeds  for  the  conveyance  of  real  estate, 
have  been  framed  with  a  view  to  give  the  party  entitled  a 
fair  indemnity  for  the  damages  he  has  sustained.  Thus,  if 
the  covenant  of  seizin  is  broken,  as  thereby  the  title  wholly 
fails,  tlie  law  restores  to  the  purchaser  the  consideration  paid, 
which  is  the  agreed  value  of  the  land,  with  interest.  But  in 
this,  as  well  as  in  other  covenants  usual  in  the  conveyance  of 
real  estate,  if  there  exist  facts  or  circumstances  which  would 
render  the  application  of  the  rule  inequitable,  they  are  to  be 
taken  into  consideration  by  a  jury.  The  covenant  was  intended 
to  secure  to  the  plaintiff  a  legal  seizin  in  the  land  conveyed. 
If  it  is  broken,  and  he  foils  of  that  seizin,  he  has  a  right  to 
reclaim  the  purchase  money.  But  if,  in  virtue  of  another 
covenant  in  the  same  deed,  which  was  also  taken  to  assure  to 
him  the  subject  matter  of  the  conveyance,  he  has  obtained 
that  seizin,  it  would  be  altogether  inequitable  that  he  should 
have  the  seizin,  and  be  allowed  besides  to  recover  back  the 
consideration  paid  for  it."  '° 

§  446.  General  Doctrine  where  there  is  no  Seizin  in 
the  Grantor. — The  general  doctrine  is,  that  if  there  is  no 
seizen  of  the  premises  in  the  grantor,  there  is  a  breach  of 
covenant  of  seizin  at  the  time  of  the  conveyance,  which 
instanter  becomes  a  personal  claim  in  favor  of  the  grantee; 
and  the  great  majority  of  the  American  cases  hold,  that  the 
covenant  does  not  run  with  the  land.  They  hold  the  breach,  if 
an}',  to  be  in  praesenti/  that  it  is  broken,  if  at  all,  when  the 
deed  is  delivered;  and  that  the  claim  of  damages  for  the 
breach  thereof  is  in  its  nature,  personal  to  the  grantee,  and  is 


'«  20  Me.,  260.    See,  also,  Wliiting  v.  Davey,  15  Pick.,  428. 


372  THE  LAW  OF  DAMAGES. 

The  English  Rule— American  Doctrine. 

not  transferred  by  the  grantee  by  a  subsequent  convey- 
ance." 

But,  in  England,  and  in  many  of  the  states,  especially 
where  deeds  have  been  reduced  by  statute  to  forms  of  greater 
simplicity,  and  where  choses  in  action  are  assignable,  the 
covenant  of  seizin  is  held  to  run  with  tlie  land." 

§447.    The  English  Rule— American  Doctrine.— In 

the  case  of  Schqfield  v.  The  Iowa  Homestead  Company.^ 
snjpra.,  Beck,  J.,  remarks:  "The  English  rule  is  commended 
to  us  by  reason  and  justice,  and  Chancellor  Kent,  while  con- 
demning the  reason  upon  which  it  is  supported,  in  Kingdon 
V.  Nettle^  admits  that  the  American  doctrine  is  supported 
upon  a  technical  scruple^  and  assigns  the  most  conclusive  rea- 
sons in  support  of  the  opposite  English  rule.  4  Kent.,  472. 
The  effect  of  all  covenants  in  conversances  of  lands  relating  to 
their  title  or  their  enjoyment,  is  to  secure  indemnity  to  the 
party  entitled  to  the  premises  in  case  he  is  deprived  of  them. 
The  subsequent  vendee,  in  the  language  of  Kent,  '  is  tlie  most 
interested  and  the  most  fit  person  to  claim  the  indemnity 
secured  by  them  (the  covenants),  for  the  compensation  belongs 

'7  Mitchel  V.  Warner,  5  Conn.,  497;  4  Kent's  Com.,  472;  Lewes  v.  Ridge 
Cro.  Eliz.,  863;  Com.  Dig.  Tit.  Cov.  B.,  3;  Andrew  v.  Pearce,  4  Bos.  &  P., 
158;  Glinister  v.  Audley,  T.  Ray.,  14;  Hamilton  v.  Wilson.  4  John.,  72; 
Logan  V.  Moulder,  1  Pike  (Ark.),  323;  Clark  v.  Swift,  3  Met.,  390;  Greenby 
V.  Wilcocks,  2  Johns.,  1;  Kerr  v.  Shaw,  13  Johns.,  236;  Withy  v.  Mumford, 
5  Cow.,  137;  Birney  v.  Haun,  3  A.  K.  Marsh.,  324;  Marston  v.  Hobbs,  2 
Mass.,  439;  Chapman  v.  Holmes,  5  Halst.,  20;  Garfield  v.  WilUams,  2  Vt., 
327;  Thayer  v.  Clemence,  22  Pick.,  493;  Dale  v.  Shively,  8  Kans.,  276. 

'8  Kingdon  v.  Nottle,  1  Maule  &  S.,  355;  4  Id.,  53;  Kingv.  Jones,  5  Taunt., 
418;  4  Maule  &  S.,  186;  1  Smith  Lead.  C.  (Am.  Notes  to  Spencer's  case),  150; 
4  Kent's  Com.,  472;  1  Wash  Real  P.,  649;  Salmon  v.  Valejo,  41  Cal,  481; 
Dale  V.  Shively,  8  Kan.,  276;  Brandt  v.  Foster,  5  la.,  287;  Frank  v.  Cresswell, 
Id.,  62;  Schofield  v.  The  Iowa  Homestead  Co.,  32  la.,  317.  But,  m  Ohio, 
the  doctrine  has  been  accepted  with  this  quaUfieation,  that  where  the  grantor 
has  neither  the  title  nor  possession,  and  is,  therefore,  unable  to  transfer 
either,  the  covenant  is  broken  at  the  time,  and  becomes  a  mere  right  of  action, 
which  is  not  transferred  by  a  subsequent  deed  of  the  land.  Backus  v.  Mc- 
Coy, 3  Oliio,  211;  Foot  v.  Burnett,  10  Id..  317;  Devorev.  Sunderland,  17  Id., 
62.    See,  also,  Martm  v.  Baker,  5  Blackf.  (Ind.),  232. 


COVENANTS— REAL  ESTATE.  373 

The  Englisli  Rule— American  Doctrine. 

to  liim  as  the  last  purchaser  and  the  first  sufferer.'  The  Ameri- 
can rule  will  operate  oppressively,  in  all  cases  where  the  land 
has  been  subsequently  conveyed  by  the  grantee,  either  towards 
the  grantor  or  subsequent  purchaser.  If  the  purchaser  is 
evicted,  he  ought  to  receive  the  indemnity  secured  by  the 
covenant,  for  he  is  not  only,  as  is  said  by  Kent,  the  first  suf- 
ferer, but  the  only  sufterer  in  every  instance  except  where  he 
has  not  paid  for  the  land.  "When  the  grantee  under  the  deed 
containing  the  covenant,  has  sold  and  received  pay  for  the 
land,  it  would  be  gross  injustice  to  permit  him  to  recover,  for 
he  would  not  in  that  case  sustain  damages.  But  under  the 
rule  to  which  we  are  now  objecting,  the  grantee  may  recover 
on  the  covenant  of  seizin,  and  if  there  be  a  covenant  of  war- 
ranty in  the  deed,  the  subsequent  grantee  may  also  recover 
upon  that  contract  against  the  first  grantor.  But,  if  there  be 
no  covenant  of  warranty,  we  would  have  the  equally  strange 
case  of  the  first  grantee  recovering  damages  when  he  is  enti- 
tled to  none,  and  the  party  really  injured  unable  to  recover. 
Other  instances  of  unjust  and  unreasonable  results  could  be 
mentioned.  The  '  technical  scruple,'  as  it  is  called  by  Kent, 
upon  which  the  American  doctrine  is  based,  is  this:  The 
covenant  is  broken  the  instant  the  conveyance  is  delivered  and 
it  then  becomes  a  chose  in  action  held  by  the  grantor  in  the 
deed,  *  *  *  *  But  how  can  this  be  a  reason  in  support 
of  the  doctrine  under  the  laws  of  this  state,  which  permit  the 
assignment  of  all  choses  in  action  ?  What  legal  j)rinciple 
would  be  violated  by  holding  that  the  deed  from  the  first 
grantee,  operates  as  an  assignment  of  this  chose  in  action.^''  " 

§  448-  So  in  Missouri,  it  has  been  held,  that  a  covenant 
of  indefeasible  seizin,  created  by  statute,  is  a  covenant  for  title 
and  runs  with  the  land,  and  that  the  satisfaction  of  a  judg- 
ment in  proceedings  to  enforce  the  assignment  of  dower  in 
certain  lands  held  by  the  grantee  under  such  covenant  of  seizin, 

»9  Schofield  V.  Iowa  Homestead  Co.,  32  la.,  317. 


374  THE  LAW  OF  DAMAGES. 


Partial  Breach  of  Covenant  of  Seizin  -Against  Incumbrances— Rule. 


is  equivalent  to  an  eviction,  for  the  purposes  of  a  suit  by  him, 
ao-ainst  the  ijrantor  on  the  covenant.'"  And  the  rule  is  the 
same  whether  the  grantee  has  been  in  possession  of  the  land 
or  not;  for  the  money  due  for  rents  and  profits,  to  the  owners, 
constitute  distinct  and  separate  claims.''' 

§  449 .  Where  there  is  a  Partial  Breach  of  the  Cove- 
nant of  Seizin. — And  where  there  is  a  breach  of  the  covenant 
of  seizin,  as  to  only  a  portion  of  the  lands  conveyed,  the 
damages  will  be  such  a  portion  of  the  w^holo  consideration 
and  interest,  as  the  value  of  that  part  bears  to  the  value  of 
the  whole."  But  where  the  grantee  has  had  possession  and 
is  not  liable  for  mesne  profits,  the  damage  is  held  to  be  the 
purchase  money  without  interest."'  And  usually  the  right  to 
recover  interest  is  limited  to  the  time  for  which  mesne  profits 
can  be  recovered  under  the  statutes  of  the  different  states." 

§  450.  Damages  for  Breach  of  Covenant  Against 
Incumbrances— General  Rule.— The  following  usual  coven- 
ant, is  that  of  freedom  from  incumbrances,  which  we  will 
now  proceed  to  consider.  It  may  be  observed  that  the  gen- 
eral rule  of  damages  in  such  cases,  is  to  make  good  the  actual 
loss  of  the  grantee,  in  case  of  a  breach;  or  in  other  words,  to 
allow  the  plaintiff  such  a  sum  as  would  place  him  in  the  same 
position  as  if  the  covenant  had  been  kept  by  the  grantor. 
Hence,  if  the  covenantee  extinguishes  the  incumbrance  on  the 
land,  he  may  recover  of  the  covenantor  the  amount  so  paid." 

2°  Mag-uire  v.  Riggin,  44  Mo.,  512. 

"  Mitchell  V.  Hazen,  4  Conn.,  495;  Pitcher  v.  Livingston,  4  John.  (N.  Y.),  1. 

=^  Ella  V.  Card,  2  N.  H.,  175;  Hubbard  v.  Norton,  10  Conn.,  422;  Morris 
V.  Phelps,  5  Johns.  (N.  Y.),  49;  CorneU  v.  Jackson,  3  Cush.  (Mass.),  506; 
Partridge  v.  Hatch,  18  N.  H.,  494. 

=3  Flint  V.  Steadman,  36  Vt.,  210. 

=4  Noonan  v.  Ilsley,  21  Wis.,  140;  Rich  v.  Johnson,  1  Chand.  (Wis.),    19. 

25  Prescotfc  V.  Truman,  4  Mass.,  627;  Harlow  v.  Thomas,  15  Pick.  (Mass.), 
66;  ChappeU  v.  Bull,  17  Mass.,  213;  Hall  v.  Dean,  13  John.,  105.  But  see, 
Barrett  v.  Porter,  14  Mass.,  143,  where  land  was  appraised  and  taken  on 
execution;  the  amount  of  the  appraisement  was  held  to  be  the  damages  on 
the  eviction. 


COYEITANTS— KEAL  ESTATE.  375 

Nominal  Damages— When  Recoverable. 

The  amount  fairly  paid  to  remove  incumbrances  is  the  amount 
which  may  be  recovered/^  and  this,  though  paid  after  the 
action  was  commenced;"  provided  it  does  not  exceed  the  con- 
sideration money  and  interest,"  and  if  not  paid,  the  grantee  can 
recover  nominal  damages  only.^'  If  the  incumbrance  cannot  be 
removed,  he  may  recover  just  compensation  for  the  real  injury 
resulting  from  the  incumbrance;  and  if  permanently  kept  out 
of  the  estate  by  reason  of  the  incumbrance,  he  may  recover 
the  purchase  mone^^  with  interest.^" 

§  451.     Nominal  Damages  —  When  Recoverable. — 

The  reason  of  the  rule  that  the  grantee  shall  recover  only 
nominal  damages,  where  he  has  not  paid  or  removed  the 
incumbrance  nor  been  thereby  evicted,  is,  that  he  should  not 
be  permitted  to  recover  back  the  consideration  money  for  the 
land,  while  he  still  enjoys  it,  and  may  never  be  disturbed  in 
his  possession;  and  he  must  first  pay  off  the  incumbrance,  so 
that  it  cannot  afterwards  prejudice  the  grantor,  before  he  will 
be  permitted  to  recover  the  amount  fairly  and  reasonably  paid 

^  Comins  v.  Little,  24  Pick.  (Mass.),  266;  Thayer  v.  Clarence,  22  Id.,  490; 
Wilson  V.  Wilson,  25  N.  H.,  229;  Braman  v.  Bingham,  26  N.  Y.,  483. 

^  Brooks  V.  Moody,  20  Pick.,  474. 

^  Footv.  Burnett,  10  Ohio,  317;  4  Kent's  Com..  476;  Rawle  on  Cov.,  155. 
See,  also,  Batchelder  v.  Sturges,  3  Cush.  (Mass.),  201,  where  the  diminished 
value  of  the  estate  was  not  the  measure  of  damages. 

=9  Prescott  V.  Tniman,  supra;  Grant  v.  Tallman,  20  N.  Y.,  191;  Tuft  v, 
Adams,  8  Pick.,  547;  Harlow  v.  Thomas,  15  Id.,  66;  Stowell  v.  Bennett,  34 
Me.,  422;  Anderson  v.  Davison,  17  N.  H.,  413;  Smith  v.  Jefts,  44  X.  H., 
482,  where  there  was  a  breach,  but  the  covenantor  removed  the  incum- 
brances; Eaton  V.  Lyman,  30  Wis.,  41.  See,  also,  Bailey  v.  Scott,  13  Wis., 
618;  Heard  v.  Hall,  12  Id.,  112;  Lawless  v.  CoUier,  19  Mo.,  480;  Stewart 
V.  Drake,  4  Halst.  (N.  J.  L.),  139,  in  which  case  the  whole  premises  were 
absorbed  by  the  mortgage  debt,  and  it  was  held  that  the  grantee  should 
recover  the  whole  consideration  and  interest.  Fawcett  v.  Woods,  5  la.,  400; 
Lewis  V.  Harris.  31  Ala.,  689;  Noonan  v.  Ilsley,  21  Wis.,  140;  Standard  v. 
Eldridge,  16  John..  254;  Sturtevant  v.  Phelps,  82  Mass.,  50;  Eddington  v. 
Nix,  49  Mo.,  1S4;  Thayer  v.  Clemence,  22  Pick.,  490. 

3°  Sedg.  on  Dam.,  178;  Willetts  v.  Burgess,  34  111.,  494;  Grant  v.  Tallman, 
20  N.  Y.,  191;  Giles  v.  Dugre,  1  Duer.,  331;  Porter  v.  Bradley,  7  R.  I.,  538; 
Cady  v.  AUen,  22  Barb.,  388;  Funk  v.  CasweU,  5  la.,  62. 


876  THE  LAW  OF  DAMAGES. 

When  Incumbrance  cannot  be  Removed— Damages. 

to  extinguisli  it.  And  he  must  extinguisli  the  right  of  dower 
or  other  paramount  right,  or  have  been  disturbed  in,  or  lost 
his  title  by  reason  of  the  incumbrance,  before  lie  can  recover 
more  than  nominal  damages,  for  a  breach  of  the  covenant 
against  incumbrances." 

Thus,  where  the  premises  were  sold  under  a  judgment, 
which  was  a  lien  on  them  at  the  time  of  the  conveyance  with 
a  covenant  of  freedom  from  incumbrances,  and  were  bid  in  at 
such  sale  by  the  grantee,  the  measure  of  damages  was  held  to 
be,  the  amount  paid  by  him  with  interest,  and  perhaps  neces- 
sary incidental  expenses."  So,  in  Illinois,  it  is  held  that  if,  by 
reason  of  an  incumbrance,  the  title  has  failed  and  the  premises 
have  been  lost  to  the  vendee  he  may  recover  to  the  full 
extent  of  the  consideration;  or  if  he  has  removed  the  incum- 
brances he  can  only  recover  the  sum  paid  for  this  purpose,  not 
exceeding  the  consideration.  But  if  he  has  not  been  disturbed 
in  his  possession  nor  paid  anything  to  remove  the  incum- 
brance, he  can  recover  only  nominal  damages  for  the  breacli; 
and  this  is  the  general  doctrine,  as  we  have  seen,  in  this  coun- 
try.- 

§  452.  When  the  Incumbrance  cannot  be  Removed 
— Damages. — The  covenantee  may  recover  for  a  breach  of  the 
covenant,  when  the  incumbrance  cannot  be  removed.  An 
instance  of  an  incumbrance  which  cannot  be  removed  by  the 
covenantee,  but  for  which  he  may  recover  such  damages  as  is 
actually  sustained  thereby,  is  where  the  incumbrance  consists 
of  a  right-of-way  of  a  railroad,  or  of  the  public,  as  a  highway, 
for  which  the  covenantee  may  recover  such  damages  as  may 
be  sustained  thereby,  whether  the  covenantee  had  knowledge 
of  the  existence  of  the  incumbrance  at  the  time  of  the  con- 


32  Prescott  V.  Truman,  4  Mass.,  627;  Delaverqe  v.  Norris,  7  John.,  358. 

33  Burke  V.  Clements,  16  Ind.,  132. 

34  Willetts  V.  Burgess,  34  111.,  494. 


COYENANTS— EEAL  ESTATE.  377 

When  Incumbrance  Kemoved  by  Grantee. 

vejance  or  not.'*  So,  it  was  held,  that  a  stipulation  in  a  deed 
poll,  seasonably  recorded,  that  the  grantee,  a  married  woman, 
her  heirs  and  assigns  would  forever  make  and  maintain  a  good 
fence  all  around  the  granted  premises,  created  an  incumbrance, 
and  that  such  an  incumbrance  was  within  the  meaning  of  a 
covenant  against  incumbrances  in  a  deed  subsequently  made 
by  her,  and  that  for  a  breach  thereof,  the  grantee  was  entitled 
to  his  actual  damages.'* 

But  where  the  vendor  made  a  special  covenant  to  pay  all 
claims  against  the  lot  sold,  it  was  held  not  necessary  for  the  pur- 
chaser to  prove  that  a  judgment  which  is  a  lien  on  the  premises 
has  been  enforced  or  that  he  has  been  evicted,  but  that  the  non- 
payment of  the  judgment  was  all  that  was  necessary,  in  order 
to  constitute  a  breach  of  the  covenant;  and  that  on  this  show- 
ing the  plaintiff  was  entitled  to  recover  the  amount  of  the  judg- 
ment with  interest." 

§  453.  Where  the  Incumbrance  has  been  Removed 
by  the  Grantee- — In  all  cases  of  a  breach  of  covenant  against 
incumbrances,  where  the  same  has  been  removed  by  the  cove- 

35Rawle  on  Gov.  for  Title,  115.  to  120,  and  notes;  Butler  v.  Yule,  27  Vt. 
(1  Williams),  739;  Kellogg  v.  Martin,  50  Mo.,  496;  Van  Wagner  v.  Van  Nos- 
trand.  19  la..  422;  Barlow  v.  McKinley,  24  la.,  69;  Beach  v.  Miller,  51  111., 
206;  Hubbard  v.  Norton,  10  Conn.,  422.  And  the  same  doctrine  is  held 
where  a  private  right-of-way  exists.    Rea  v.  Minkler,  5  Lans.  (N.  Y.),  196. 

36  Burbanks  v.  Pilsbury,  48  N.  H.,  4:37.  See,  also,  Bronson  v.  Coffin,  108 
Mass.,  175,  where  the  incumbrance  was  a  covenant  to  maintain  a  fence  along 
a  railroad,  and  the  damage  was  held  to  be  the  difference  between  the  value 
of  the  land  with  and  without  the  incumbrance. 

37  Cady  V.  Allen,  22  Barb.  (N.  Y.),  388.  See,  also,  same  doctrine  in  Rec- 
tors, etc..  Trinity  Church  v.  Higgins,  48  N.  Y.,  532.  And  this  seems  to  be 
the  general  rule  in  this  coimtry  on  a  breach  of  covenants  of  this  kind. 
Johnson  v.  Britton,  23  Ind.,  105;  Sedg.  on  Dam.  182.  So  the  existence  of 
an  easement,  if  it  can  be  held  to  be  a  breach  of  any  covenant,  is  a  breach 
of  the  covenant  against  incumbrances.  McMulhn  v.  Wooley,  2  Lans.  (N.  Y.), 
394.  But  in  Maine  it  has  been  held  that  the  right  of  a  divorced  wife  to 
dower  in  the  premises  conveyed,  with  covenants  of  freedom  from  incum- 
brances, before  assignment  though  after  a  demand,  is  a  breach  of  the  cove- 
nant for  which  only  nominal  damages  can  be  recovered.  Runnells  v.  Webber, 
59,  Me.,  488. 


378  THE  LAW  OF  DAMAGES. 

When  Incumbrance  Kemoved  by  Grantee. 

nantee  he  is  entitled  to  recover  in  an  action  on  the  covenant 
against  incumbrances,  all  the  damages  actually  sustained 
thereby.  Thus,  it  was  held  in  Missouri,  that  the  measure  of 
damages  for  the  breach  of  a  covenant  against  incumbrances  in 
a  deed  of  real  estate,  is  the  cost  of  extinguishing  such  incum- 
brances; and  the  reasonableness  of  the  amount  expended  by  the 
vendee,  for  this  purpose,  is  a  question  for  the  jury.'* 

So,  in  Massachusetts,  in  an  action  on  this  covenant  aTid  on 
the  covenant  of  warranty,  where  it  appeared  that  in  the  con- 
veyance to  the  defendants,  the  land  was  supposed  to  be 
embraced  but  was  not,  and  it  further  appeared  that  subsequently 
to  the  conveyance  by  defendants  to  plaintiff,  the  original 
owners  entered  and  plaintiff  surrendered,  and  afterwards  paid 
divers  sums  to  extinguish  the  adverse  title,  and  the  plain- 
tiffs claimed  the  sums  thus  paid,  and  for  the  time  spent  in 
extinguishing  it,  and  incidental  expenses  for  a  horse  and  car- 
riage hire  incurred  tlierein,  and  a  sum  paid  for  advice  of  counsel 
after  suit  brought  by  the  claimant  of  the  adverse  title,  it  was 
held,  that  the  claim  for  counsel  fees  was  improper,  but  the 
other  expenses  were  allowed.'* 

So,  in  New  Hampshire,  in  an  action  brought  on  this  covenant 
on  the  ground  of  the  existence  of  a  highway,  to  contest  which 
the  plaintiff  had  been  induced,  on  the  representations  of  the 
defendant,  to  bring  suit,  and  had  been  defeated;  it  was  held, 
that  the  costs  of  that  suit  were  a  proper  item  of  damages."" 

And  in  Maine  and  Massachusetts,  it  has  been  held,  that  in 
a  suit  on  this  covenant,  the  plaintiff'  may  recover  the  amount 
paid  to  free  the  title  though  paid  after  suit  was  brought,  and 
this  on  the  ground  that  there  was  a  technical  breach  of  cove- 

38  St.  Louis  V.  Bissell,  46  Mo.,  157.  See,  also,  Farmers  Bk.  v.  Glenn,  68 
N.  C,  35. 

39  LeffingTvell  v.  Elliott,  10  Pick.,  204.  And  in  the  same  state  it  was  held, 
that  the  covenantee  might  recover  the  amount  of  a  judgment  lien,  if  dis- 
charged by  him  at  any  time  before  trial.    Preble  v.  Baldwin,  6  Gush.,  549. 

*>  Haynes  v.  Stevens,  11  N.  H.,  28. 


COVENANTS— KEAL  ESTATE.  379 

Where  Covenantee  Receives  Money,  etc.— Maximum  Amount  Kecoverable. 

nant  without  payment  of  the  incumbrance,  which  would 
entitle  the  plaintiff  to  nominal  damages,  and  that  the  pay- 
ment of  the  incumbrance,  was  a  matter  relating  to  the  amount 
of  damages  which  the  plaintiff  was  entitled  to  recover."' 

In  New  York,'  where  the  the  former  rule  prevails  in  refer- 
ence to  breaches  of  the  covenants  of  deeds,  the  limit  of 
responsibility  of  the  covenantor  for  a  breach  of  covenant 
against  incumbrances,  is  the  consideration  with  interest  and 
costs." 

§  455.  Where  a  Covenantee  Receives  Money  from 
the  Covenantor  to  Remove  Incumbrances  .—In  Michi- 
gan, it  has  been  held  that  a  purchaser  whose  vendor  has  cove- 
nanted against  incumbrances  and  paid  him  money  expressly 
to  take  up  an  outstanding  mortgage,  is  bound  to  apply  it  in 
favor  of  his  own  subsequent  grantees  who  take  with  similar 
covenants,  and  is  liable  in  an  action  for  the  money  paid  by 
one  of  them  to  redeem  the  land  conveyed,  from  the  mort- 
gage."' 

§  456.  The  Maximum  Amount  Recoverable.— A  differ- 
ent rule  has  been  adopted  in  different  states  in  reference  to  the 
limit  of  damages  in  cases  of  a  breach  of  covenant  of  freedom 
from  incumbrances,  as  well  as  incases  of  breaches  of  covenant 
for  quiet  enjoyment  and  of  warranty,  as  we  shall  hereafter 
see. 

In  those  states  where  the  amount  of  damages  for  a  breach 
of  the  covenant  of  warranty  is  limited  to  the  amount  of  the 
consideration  j^aid,  and  interest,  it  is  generally  held  that  the 
limit  of  damages  on  a  breach  of  the  covenant  of  freedom  from 
incumbrances,  is  the  consideration  paid  and  interest;  and  that, 

4' Kelly  V.  Low,  18  Me.,  244;  Gardner  v.  NUes,  16  Id.,  279;  Leffingwell 
V.  Elliott,  supra;  Brooks  v.  Moody,  20  Pick,  474.  See,  also,  Greene  v.  Tall- 
man,  20  N.  Y.,  191.    So  in  Illinois.    See  Claycomb  v.  Munger,  51  111.,  373. 

<=  Green  v.  Talman,  20  N.  Y.,  191.  Dimmick  v.  Lockwood,  10  Wend., 
142.    And  the  same  rule  prevails  in  Indiana.    Burton  v.  Reeds,  20  Ind.,  87. 

*3  TwitcheU  v.  Drury,  25  Mich.,  393. 


380  THE  LAW  OF  DAMAGES. 

The  Maximum  Amount  Recoverable. 

where  this  rule  prevails,  the  extreme  limit  of  damages,  in  cases 
of  the  breach  of  the  covenant  of  freedom  from  incumbrances, 
can  never  exceed  the  consideration  paid  and  interest;  and 
notwithstanding  the  grantee  may  pay  off  incumbrances,  to  a 
greater  amount  than  the  consideration  paid;  he  can  recover 
no  more  than  that  sum  with  interest. 

And,  where  the  rule  prevails,  on  a  breach  of  the  covenant  of 
general  warranty,  allowing  the  value  of  the  estate  at  the  time 
of  the  eviction,  there  the  maximum  measure  of  damages,  on  the 
breach  of  the  covenant  of  freedom  from  incumbrances,  is  the 
value  of  the  estate  at  that  time.  Hence  the  rule  of  damages, 
above  laid  down  in  case  of  the  breach  of  covenant  of  freedom 
from  incumbrances,  by  which  the  covenantee  is  allowed  to 
recover  whatever  he  has  paid,  or  may  be  required  in  good  faith 
to  pay  to  remove  the  incumbrance,  should  be  limited  in  the 
one  case  to  the  value  of  the  land  at  the  lime  of  the  convey- 
ance, which  is  usually  held  to  be  the  consideration  paid  and 
interest,  and  the  necessary  expenses  and  costs  of  defending 
against  the  incumbrance;  and  in  the  other  case,  to  the  value 
of  the  land  at  the  time  of  the  removal  of  the  incumbrances  by 
the  plaintiff,  and  perhaps  necessary  trouble,  and  expense 
incurred  in  a  reasonable  defense  against  the  incumbrance. 

Chancellor  Kent  remarks:  "The  ultimate  extent  of  the  ven- 
dor's responsibility  under  all  or  any  of  the  usual  covenants  in 
his  deed,  is  the  purchase  money  with  interest.""  Though 
this  may  be  the  general  rule,  it  is  not  the  universal  one  in  the 
United  States,  as  we  shall  hereafter  notice. 

§  457.  In  Rhode  Island,  it  is  held  that  the  covenantee 
may  recover  as  damages,  a  sum  equal  to  the  injury  sustained 
at  the  time  the  suit  is  brought,  and  that  he  is  entitled  where 
he  has  removed  incumbrances  to  the  amount  paid  in  so  doing, 
not  exceeding  the  amount  of  the  consideration  paid  and  inter- 
est; but  that  where  the  incumbrance  is  outstanding  and  the 

**  4  Kent's  Com.,  474. 


COYE^ANTS— REAL  ESTATE.  381 

The  Slaximum  Amount  Recoverable. 

grantee  has  not  been  actually  injured  thereby,  he  is  entitled 
to  only  nominal  damages. 

If  however,  the  incumbrance  is  contimious,  as  in  case  of 
easements,  servitudes  and  unexpired  terms,  it  is  held,  that  the 
rule  of  nominal  damages  does  not  apply,  for  although  he  has 
paid  nothing,  he  has  sustained,  and  is  continually  sustaining 
injury,  to  the  extent  of  which  he  is  entitled  to  recover  dam- 
ages." And  in  Louisiana,  a  purchaser  who  goes  into  posses- 
sion is  entitled  to  recover  of  the  warrantor  only  the  price  paid, 
with  interest  from  the  time  of  the  eviction,  and  he  cannot 
recover  counsel  fees."' 

§  458.  In  Massachusetts  where  the  larger  rule  prevails  on 
a  breach  of  the  covenant  of  general  warranty,  the  general 
rule  as  to  the  measure  of  damages  in  case  of  a  breach  of  cove- 
nant of  freedom  from  incumbrances,  is,  that  the  covenantor 
is  bound  to  refund  the  amount  paid  by  the  covenantee  to 
remove  incumbrances,  with  the  qualification  that  the  amount 
cannot  exceed  that  which  the  grantor  would  be  bound  to  pay 
in  case  of  eviction,  which  would  be  the  value  of  the  land  at 
the  time  of  the  eviction  with  interest." 

So  in  Ohio,  where  the  plaintiff  after  exchanging  with  one  of 
the  defendants,  certain  lands  in  Ohio  for  lands  in  Indiana, 
discovered  that  the  Indiana  lands  were  subject  to  an  attach- 
ment in  favor  the  creditors  of  one  of  the  defendants,  and  he 
thereupon  executed  and  delivered  to  the  plaintiff  a  written 
undertaking  to  cancel  all  incumbrances  on  the  Indiana  land, 
"within  six  months,  which  undertaking  was  guaranteed  by  the 
other  defendant,  and  the  Indiana  land  was  sold  on  the  attach- 
ment, the  j)laintiff  was  held  entitled  to  recover  the  value  of 
the  land  at  the  time  of  such  sale,  with  interest  from  that  time." 

46  Porter  v.  BratUey,  7  R.  I.,  53S;  Fawcett  v.  Woods,  5  la.,  400. 

47  Hale  V.  New  Orleans,  13  La.,  499;  Coleman  v.  Ballard,  13  La.,  512. 

48  Norton  v.  Babcock,  2  Met.,  510;  Baxret  v.  Porter,  14  Mass.,  143. 

49  Manchan  v.  Smith,  19  Oliio  St.,  884. 


382  THE  LAW  OF  DAMAGES. 


The  Maximum  Amount  Recoverable. 


But  in  Louisiana,  under  the  Code  of  that  State,  the  grantee 
cannot  recover  for  improvements  made  on  the  land  by  the  ven- 
dee, after  the  bringing  of  the  suit  to  evict  him,  where  it  is 
not  shown  that  the  improvements  increased  the  value  of  the 
land  or  benefitted  the  warrantor.'" 

§  459.  This  covenant,  it  may  be  observed,  is  closely  related 
to  that  of  quiet  enjoyment  and  general  warranty;  and  the 
breach  thereof  may  ripen  into  a  right  of  action,  either  on  the 
covenant  of  general  warranty  or  for  quiet  enjoyment,  as  where 
the  incumbrance  is  a  mortgage  or  judgment  lien,  which  after 
foreclosure  and  a  sale  in  either  case,  may  divest  the  vendee  of 
the  premises,  either  by  a  voluntary  surrender  of  the  premises 
to  the  purchaser  on  execution,  or  by  a  judgment  of  eviction 
in  a  suit  brought  to  recover  the  same;  but  when  the  plaintiff 
voluntarily  yields  to  a  paramount  title,  or  buys  in  an  out- 
standing one,  he  does  so  at  his  peril,  and  in  an  action  against 
his  grantor,  on  the  covenant  in  such  a  case,  it  would  devolve 
on  him  to  show  that  the  title  to  which  he  yielded,  or  which  he 
bought  in,  was  paramount  to  that  of  the  grantor."  And 
where  at  the  time  of  the  conveyance  with  warranty  against 
incumbrances,  there  is  a  subsisting  incumbrance  which  absorbs 
the  value  of  the  land,  and  the  quiet  enjoyment  of  the  same 
is  thereby  disturbed  by  eviction,  the  measure  of  damage  is 
the  same  as  under  the  covenants  of  seizin  and  warranty." 

An  incumbrance  has  been  defined  to  be  a  right  in  a  third 
person,  in  the  lands  in  question,  to  the  diminution  of  the 
value  of  the  land,  though  consistent  with  the  passing  of  the 
fee  by  the  deed  of  conveyance." 

And,  in  Iowa,  it  is  held,  that  a  right  of  way  of  a  railroad  is 
an  incumbrance  within  the  meaning  of  the  covenant  against 
incumbrances  in  a  deed;  and   that  a  grantee   may  recover 

so  Coleman  v.  Ballard,  13  La.,  512. 

5'  Thomas  v.  Stickles,  32  la.,  71. 

s«  4  Kent's  Com.,  474,  et  seq.;  Patterson  v.  Stewart,  6  W.  &  S.  (Pa.),  527. 

53  Barlow  v.  McKinley,  24  Iowa,  69. 


COYENANTS— EEAL  ESTATE.  383 

Covenants  for  Quiet  Enjo3anent  and  of  Warranty. 

thereon  even  though  he  had  full  knowledge  of  the  existence 
of  the  incumbrance  at  the  time  of  the  conveyance."  And  if 
the  covenantee  extinguishes  the  paramount  title  by  purchase, 
his  damage  will  be  measured,  not  by  the  value  of  the  land, 
but  the  amount  paid  for  the  paramount  title,  provided  it  does 
not  exceed  the  purchase  money.^^ 

§  400.  Covenants  for  Quiet  Enjoyment  and  of  War- 
ranty.— These  covenants  may  be  considered  together,  as  sub- 
stantially the  same,  as  the  same  rules  of  damages  are 
applicable  to  each.  In  order  to  recover  upon  these  covenants, 
it  is  necessary  to  show  some  substantial  damage.  It  is  not 
sufficient  that  there  is  a  paramount  legal  title  in  another,  but 
the  plaintiff  must  show  a  disturbance  of  the  possession,  or  an 
eviction  from  the  premises  by  a  superior  title,  in  order  to 
recover  substantial  damages.^' 

These  are  covenants  running  with  the  land,  being  covenants 
annexed  to,  or  connected  with  the  estate,  and  for  the  benefit 
of  the  covenantee,  and  any  future  covenantee  of  the  estate;  and 
either  may  maintain  an  action  for  the  breach  thereof  against 
his  immediate  or  any  remote  covenantor;  and  this  rule  applies 
now  to  all  of  the  usual  covenants  of  a  deed,  in  many  of  the 
states,  as  well  as  in  England. 

Chancellor  Kent  remarks:  "The  ancient  warranty  was  a 
covenant  real,  or  one  concerning  the  realty;  whereby  the 
grantor  of  an  estate  of  freehold  and  his  heirs,  were  bound  to 
warrant  the  title,  and  either  upon  voucher  or  by  judgment 
in  a  writ  of  warrantia  chartce,  to  yield  other  lands  to  the 

54  Bai-low  Y.  McKinley,  24  Iowa,  69. 

55  Burt  V.  Foster  et  al.,  5  la.,  287;  Fawcett  v.  Woods,  7  la.,  400.  The 
same  doctrine  applies  in  case  of  a  breach  of  a  contract  to  convey.  Baker  v. 
Corbett.  2S  la.,  317. 

56  Caldwell  v.  Kirkpatrick.  6  Ala  (N.  S.),  60;  Rea  v.  Minkler,  5  Lans.  (N. 
Y.),  196;  4  Kent's  Com.,  472.  See,  also,  4  Kent's  Com.,  479;  Reed  v.  Ham- 
ilton, 18  Ind.,  476.  But  nominal  damages  may  be  recovered  where  there  is 
no  actual  ouster.    Brady  v.  Sparks,  27  III.,  475. 


384  THE  LAW  OF  DAMAGES. 

Damages  on  a  Breach— Consideration  and  Interest. 

value  of  those  from  which  there  had  been  an  eviction  bj  a  par- 
amount title.  The  heir  of  the  warrantor  was  bound  only  on 
condition  that  he  had  as  assets,  other  lands  of  equal  value  by 
descent."  " 

§461.  Dfimages  on  a  Breach— Consideration  and 
Interest. — The  ancient  rule  in  case  of  warrantv  has  had  irreat 
influence  in  fixing  the  rule  of  damages  on  a  breach  of  war- 
ranty in  modern  times.  As  under  the  ancient  rule,  the 
defendant,  in  case  of  eviction,  recovered  of  the  warrantor  or 
heir,  other  lands  of  the  value  only  of  the  lands  warranted  at 
the  time  of  the  warranty,  and  not  for  any  increased  value  of  the 
lands  by  improvements  or  otherwise,  so  in  an  action  for  the 
breach  of  the  modern  covenant  of  warranty,  the  general  rule 
of  damages  in  this  country,  in  the  absence  of  fraud,  is  the 
value  of  the  land  at  the  time  of  the  execution  of  the  deed, 
of  which  the  actual  consideration  is  conclusive  evidence, 
together  with  the  interest  thereon,  whei-e  the  grantee  has  not 
received  the  rents  and  profits,  or  has  accounted  for,  or  is  liable 
to  account  for,  rents  and  profits  of  the  premises;  to  which  is 
usually  added  the  necessary  expenses  reasonably  and  actually 
incurred  in  the  suit  in  which  the  grantee  was  evicted.  If  the 
breach  is  partial,  the  griintee  may  recover  j^ro  tanto. 

These  rules  prevail  in  New  York,  New  Hampshire,  New 
Jersey,  Pennsylvania,  Ohio,  Indiana,  Yirginia,  Kentucky, 
Tennessee,  Missouri,  Arkansas,  Texas,  Wisconsin,  Iowa, 
Georgia,  South  Carolina,  Kansas,  California,  Minnesota,  and 
probably  other  states  and  territories.  And  the  consideration 
money  expressed  in  the  deed,  is  at  ]ea.st  prima  Jucie  evidence 
of  the  consideration  paid.^* 

58  4  Kent's  Com.,  468,  469;  2  Black.  Com.,  298,  et  seq. 

59  4  Kent's  Com.,  476;  Bracton  de  Warrantia,  lib.  5,  c.  13,  Sec.  3;  Pitcher 
V.  Livingston,  4  Johns.,  1;  Willson  v.  Willson,  25  N.  H.  (5  Fost.),  229;  Fer- 
nander  v.  Dunn,  19  Geo.,  497,  where  in  addition  to  the  purchase  money  and 
interest,  the  expense  of  plaintiff  in  defending  the  possession,  was  allowed; 
Phipps  V.  Tarpley,  31  Miss.,  433;  Baxter  v.  Ryerss,  13  Barb.,  267;  House  v. 


COVENANTS— KEAL  ESTATE.  385 


states  where  the  Value  at  Time  of  Eviction  Prevails. 


§  462.  States  where  the  Value  at  the  Time  of  the 
Eviction  Prevails.— The  above  rule  prevails  in  all  the  states 
except  Massachusetts,  Maine,  Yermont,  Connecticut,  and 
Louisiana.  In  these  states  the  measure  of  damages  in  such 
cases,  is  the  value  of  the  land  at  the  time  of  eviction,  without 
regard  to  the  consideration  paid  therefor,  and  in  some  of  them 
in  addition  thereto,  the  expenses  incurred  in  defending  the 
eviction  suit,  including  counsel  fees.^" 

And  in  Kentucky  it  was  held,  that  in  case  of  warranty  and 


House,  10  Paigre,  158;  Grist  v.  Hodges,  3  Dev.  (N.  C.  L.),  198;  Blake  v. 
Burnham,  29  Vt.,  437;  Wade  v.  Comstock,  11  Ohio  St.,  71;  Adamson  v. 
Rose,  30  Ind.,  380;  Swaflford  v.  Wliipple,  3  Iowa,  261;  Hall  v.  Jonathan,  22 
Tex.,  641,  where  the  general  rule  was  indorsed  except  in  cases  of  fraud;  Sut- 
ton V.  Page,  4  Tex..  142;  Hanson  v.  Buckner,  4  Dana  (Ky.),  251;  Brandt  v. 
Foster,  5  Iowa,  287,  where  there  is  a  full  examination  of  authorities; 
Elliott  V.  Thompson,  4  Humph.  (Tenn.),  99;  Davis  v.  Smith,  5  Geo.  274; 
Burton  v.  Reeds,  20  Ind.,  87;  Drew  v.  Towle,  30  N.  H.,  531;  Foster  v! 
Thompson,  41  Id.,  373;  Bennett  v.  Jenkins,  13  Johns.,  50;  Stout  v.  Jackson, 
2  Rand.  (Va.).  132;  McClure  v.  Gamble,  27  Penn.  St.,  288;  Morris  v.  Roman] 
2  HaiT.  (N.  J.),  304;  Martha  v.  Gordon,  24  Geo.,  533,  holding  that  the  con- 
sideration may  be  inquired  into;  Logan  v.  Moulder,  1  Ark.,  313;  Richardson 
V.  Kelly,  22  Geo.,  62;  Coffman  v.  Huck,  19  Mo..  435;  Gridley  v.  Tucker,  1 
Freem.  Ch.  (Miss.),  209;  Tong  v.  Mathews,  23  Mo.,  437;  Threlkeld  y-  Fi'tz- 
hue,  2  Leigh.  (Va.),  451;  Dickson  v.  Desire.  23  Mo.,  151,  in  which  case  the 
purchase  money  was  held  to  be  the  measure,  no  question  as  to  interest  being 
raised.  So,  in  Fletcher  v.  Button,  6  Barb.,  646,  the  same  rule  was  applied 
in  an  action  by  the  purchaser  against  the  vendor  for  a  failure  to  convey;  but 
interest  recoverable,  was  limited  to  the  period  of  six  years.  Nuttino- v.  Her- 
bert, 35  N.  H.,  120;  37  Id.,  346;  Shaw  v.  Wilkms,  8  Humph.  (Tenn.),  647; 
Cox's  heirs  v.  Strode,  2  Bibb  (Ky.),  273. 

^  Gore  V.  Brazier,  3  Mass.,  526;  Swett  v.  Patrick,  12  Me.,  9,  where  expen- 
ses of  the  suit  including  counsel  fees  were  allowed,  and  the  same  was  held 
in  Keeler  v.  Wood,  30  Vt.,  242;  Swett  v.  Sprague,  40  Id.,  43;  Bigelow  v. 
Jones,  4  Mass.,  512;  Wyman  v.  Ballard,  12  Id.,  304;  Swett  v.  Patrick,  3 
Fairfield,  (12  Me.),  9,  where  expenses  of  defending  eviction  suit  and  counsel 
fees  were  also  allowed.  Sterling  v.  Peet,  14  Conn.,  245;  Park  v.  Bates,  12 
Vt.,  381;  Elder  v.  True,  32  Me.,  104;  Webber  v.  Coussey,  12  La.  An.,  535, 
where  it  was  held  that  the  vendee  might  recover  from  the  vendor  under  the 
Code  of  1825,  such  increase  in  the  value  of  the  premises  as  was  contem- 
plated by  the  parties,  at  the  time  of  the  sale,  as  the  probable  result  of  a 
breach.  See,  also,  Coleman  v.  Ballard,  13  La.  An.,  512;  Sarpy  v.  New 
Orleans,  14  Id.,  311. 
25 


386  THE  LAW  OF  DAMAGES. 


Arguments  in  favor  of  General  Kule. 


eviction,  the  measure  of  damages  is  the  value  of  the  Land  at 
the  time  of  the  sale,  to  be  estimated  by  the  purchase  money, 
if  expressed  in  the  deed  or  known,  together  with  interest 
thereon,  and  extraordinary  costs,  as  well  as  the  legal  expenses 
in  defense  of  the  title.  But  that  if  the  purchase  money  is 
not  expressed  in  the  deed,  other  means  may  be  used  to  ascer- 
tain its  value."' 

And,  in  Iowa,  in  an  action  on  a  covenant  of  warranty  in 
a  deed,  expressing  a  consideration  of  $150.00,  but  which  con- 
sideration was  certain  personal  property,  it  was  held  proper  to 
base  the  recovery  upon  the  value  fixed  on  the  personal  property 
by  the  parties  at  the  time  of  the  trade,  and  taken  in  payment 
for  the  land  conveyed,  rather  than  upon  its  actual  value.*^ 
And  where  the  rule  of  damages  is  the  consideration  paid,  the 
consideration  expressed  in  the  deed  is  at  least  prima  facie 
evidence  of  such  consideration;  and  the  general  rule  is,  that 
as  between  the  original  parties,  tlie  consideration  expressed  in 
the  deed  is  presumptive  evidence  of  the  amount  paid,  but  not 
conclusive;  and  the  true  consideration  may  be  shown  by  parol 
evidence.^^ 

§  463.    Arguments  in  Favor  of  tlie  General  Rule.— 

Much  learning  and  ability  have  been  displayed  in  maintain- 
ing the  different  rules  of  damages  prevailing  in  the  states 
referred  to.     In  support   of  a  uniform   rule,  the  following 

«'  2  Bibb  (Ky.),  273.  See,  also,  Seamore  v.  Harlan,  3  Dana  (Ky.),  410; 
Buckmaster  v.  Grundy,  1  Seam.  (111.),  312;  McKee  v.  Brandon,  2  Id.,  339; 
Park  V.  Bates,  12  Vt.,  381;  Hopkins  v.  YoweU,  5  Yerg.  (Tenn.),  305;  Stewart 
V.  Drake,  4  Hal.  (N.  J.),  139;  Logan  v.  Moulder,  1  Ark.,  323;  Blackwell  v. 
The  Justices  of  Lawrence  Co.,  2  Blackf.  (Ind.),  143;  Sheets  v.  Andrews,  2 
(Id.),  274.  The  general  rule  is  recognized  in  the  foregoing  cases.  The  ques- 
tions principally  discussed  relate  to  interest  and  attorneys  fees,  and  expenses 
incurred  in  defense  of  the  eviction  suit;  in  relation  to  which  the  rule  varies 
in  different  states. 

6^  WilUamson  v.  Test,  24  la.,  138. 

^3  Parker  v.  Brown,  15  N.  H.,  176;  Sedg.  on  Dam.,  193,  note,  6  ed.; 
McCrea  v.  Pui-mont,  16  Wend.,  460;  Grant  v.  Townsend,  2  Hill,  554.  See, 
also,  Bolles  v.  Beach,  2  ZabrisM  (N.  J.),  680. 


COYEN'ANTS— REAL  ESTATE.  387 

Arguments  in  favor  of  General  Eule. 

reasoning  has  been  urged :  That  ifin  an  action  for  a  breach  of 
covenant  of  seizin,  the  recovery  is  limited  to  the  considera- 
tion money  and  interest  (with  periiaps  costs  and  expenses  in 
certain  cases),  and  if  in  an  action  for  a  breach  of  covenant, 
for  quiet  enjoyment,  or  of  warranty,  the  covenantee  may 
recover  the  vahie  of  the  lands  at  the  time  of  eviction,  j^erhaps 
much  enhanced  by  valuable  improvements  made  by  the  gran- 
tee, and  also  by  appreciation  thereof  from  natural  causes, 
and  greatly  exceeding  the  purchase  money  and  interest, 
then,  as  the  covenantee  may  have  his  remedy  in  case  the  cov- 
enantor had  no  title  on  either  of  these  covenants,  if  the  land 
should  increase  in  value  by  reason  of  the  improvements  or 
extrinsic  causes,  his  interest  would  prompt  an  action  on  the 
general  warranty;  whereas,  if  the  land  should  be  greatly 
depreciated  in  value  at  the  time  of  the  eviction,  then  he 
could  sue  on  the  covenant  of  seizin,  and  recover  at  least  the 
consideration  and  interest,  although  the  value  of  the  land 
may  not  amount  to  one-half  of  the  consideration  paid.  So 
that  although  the  deed  contained  both  these  covenants,  if  the 
property  at  the  time  of  the  eviction  be  worth  one-half  the 
consideration  and  interest,  the  grantee  may  notwithstanding 
recover  upon  the  covenant  of  seizin,  the  whole  consideration 
and  interest;  but  if  the  property  liappens  to  be  worth  double  the 
amount  paid  for  it,  by  reason  of  improvements  made  or  inci- 
dental circumstances,  then  the  covenant  of  seizin  may  be 
waived,  and  the  grantee  recover  the  value  of  the  land  as  thus 
appreciated  at  the  time  of  the  eviction;  and  it  is  claimed  that 
this  is  unreasonable,  and  not  consistent  with  the  principles  of 
law  and  justice. 

Another  argument,  in  support  of  the  general  rule  in  cases 
of  eviction,  constituting  a  breach  of  covenant,  is  drawn  from 
the  reason  and  analogy  of  the  rule  in  cases  of  ancient  real  war- 
ranty, and  the  presumption  that  the  modern  personal  covenants 
of  a  deed  were  intended  to  secure  to  the  grantee  the  same 


388  THE  LAW  OF  DAMAGES. 

Arguments  in  Support  of  Kule  of  Increased  Value,  etc. 

indemnity  in  case  of  a  breach,  as  was  furnished  by  the  ancient 
warranty;  namely,  the  value  of  the  land  at  the  time  of  tlie  con- 
veyance, which  is  presumed  to  be  the  consideration  paid  there- 
for. Besides,  it  has  been  claimed  that  to  make  the  increased 
value  the  criterion,  may  be  attended  with  injustice  if  not  ruin; 
that  a  piece  of  land  may  be  purchased  for  agricultural  pur- 
poses, but  become  in  time  the  site  of  a  prosperous  city,  and 
that  there  would  be  great  hardship  in  calling  on  a  hona  fide 
vendor  to  refund  its  increased  value;  that  owners  of  land,  if 
such  were  the  case,  would  be  deterred  from  making  sales  where 
there  was  a  chance  that  property  might  advance  in  value  by 
causes  not  foreseen  by  either  party,  and  which  increased  value 
might  exceed  many  th  nisand  times  the  consideration  received 
therefor;  and  that  however  inadequate  to  full  indemnity  a 
return  merely  of  the  purchase  money  and  interest  may  be  in 
some  cases,  it  is  the  safest  rule  that  can  bs  followed. 

In  support  of  this  rule  Kent,  C.  J.,  remarks:  "  Upon  the  sale 
of  lands  the  purchaser  usually  examines  the  title  for  himself, 
and  in  case  of  good  faith  between  the  parties,  (and  of  such 
cases  only  I  now  speak),  the  seller  discloses  his  proofs  and 
knowledge  of  the  title.  The  want  of  title  is  therefore  usually 
a  case  of  mutual  error,  and  it  would  be  ruinous  and  oppressive 
to  make  the  seller  responsible  for  any  accidental  or  extraordi- 
nary rise  in  the  value  of  the  land ;  still  more  burdensome  would 
that  rule  seem  to  be  if  that  rise  was  owing  to  the  taste,  for- 
tune or  luxury  of  the  purchaser.  ISTo  man  could  venture  to 
sell  an  acre  of  ground  to  a  wealthy  purchaser  without  the 
hazard  of  absolute  ruin." 

§  464.  Arguments  in  Support  of  the  Rule  of  Increased 
Value  at  the  Time  of  the  Eviction. — On  the  other  hand, 
those  who  support  the  doctrine  that  the  measure  of  damages 
should  be  the  value  of  the  land  at  the  time  of  the  eviction, 
maintain  that  on  the  score,  both  of  analogy  and  justice,  the 

64  Staats  V.  Ten  Eyck,  3  Gaines,  111  (1805).    See,  also,  1  Kaimes  Eq.,  234. 


COYENANTS— EEAL  ESTATE.  389 

The  Duty  of  the  Author— His  Views  of  the  Question. 

same  rule  which  is  applicable  to  breaches  of  covenants  or 
agreements  for  the  delivery  of  personal  property,  should  apply 
in  case  of  a  breach  of  these  covenants  relating  to  lands;  that 
the  introduction  of  personal  covenants  into  conveyances  of 
lands  were  not  so  much  a  substitute  for  the  ancient  warranty, 
carrying  with  them  by  implication  the  same  rule  of  damages, 
as  an  assimilation  to  other  personal  covenants  and  contracts 
and  subject  to  the  same  rules  of  construction,  and  the  same 
rules  of  damages  when  they  are  broken;  that  if  so,  the  cove- 
nant for  quiet  enjoyment  or  general  warranty  would  not  be 
broken  until  an  eviction,  and  the  rule  of  damages  would  be 
the  property  lost  at  the  time,  which  would  include  the  increased 
value  of  the  lands;  that  the  rule  under  the  ancient  warranty 
was  adopted  when  the  advancement  in  the  value  of  real  estate 
from  accidental  circumstances  was  less  rapid,  and  valuable 
improvements  more  rare  than  at  present;  and  that  there  is  no 
sound  reason  why  the  grantor  may  not  give,  or  the  purchaser 
insist  upon,  a  more  efficient  indemnity  than  was  afforded  by 
the  ancient  warranty,  by  personal  covenants  in  the  deed. 

And,  to  the  argument  in  support  of  the  general  rule  based 
on  the  possible  enormous  appreciation  of  the  land,  and  the 
hazard  thereby  incurred  by  the  grantor,  the  advocates  of  the 
rule  of  increased  value  retort:  "What  is  to  become  of  the 
industrious  citizen  and  mechanic,  who  has  spent  his  hard  earn- 
ings in  erecting  his  little  house  or  workshop,  relying  on  the 
covenants  in  his  deed,  if  he  can  only  get  back  his  purchase 
money  and  interest." 

§  465.  The  Duty  of  the  Author— His  Views  of  the 
Question. — The  varying  rules  in  the  different  states  seem 
well  settled  in  their  respective  courts,  and  convenience  as 
well  as  public  policy  may  require  an  adherence  to  the  same. 
The  duty  of  the  author  generally  is,  to  present  the  law  as  it  is, 
and  not  his  views  as  to  what  it  ought  to  be.  But  in  view  of 
the  controversy  in  this  case,  the  ability  and  learning  displayed 


390  THE  LAW  OF  DAMAGES. 

The  Duty  of  the  Author— His  Views  of  the  Question, 

by  the  advocates  of  these  different  rules,  the  importance  of 
the  question,  and  the  adverse  rules  in  the  different  states,  it 
may  not  be  amiss  to  express  a  conviction  that,  although  the 
general  rule  is  supported  by  very  respectable  authorities,  the 
weiarht  of  argument  is  in  favor  of  the  rule  of  the  value  of 
the  land  at  the  time  of  the  eviction.  And  if  it  should  be  less 
than  the  purchase  money,  the  vendee  should,  it  seems  to  me, 
recover  at  least  the  consideration  raone^^  The  rule  we  lavor 
seems  more  in  accord  with  the  principles  of  our  jurisprudence, 
and  the  spirit  of  our  laws  and  institutions.  But  it  is  better 
to  have  some  fixed  rule,  even  though  it  may  not  be  the  best, 
than  a  fluctuating  one;  and  we  apprehend  that  the  rule  in  New 
York  has  in  many  instances  been  followed  in  other  states,  from 
a  conviction  of  the  importance  of  this  policy  of  uniformity, 
and  from  expediency,  rather  than  a  clear  sense  of  its  abstract 
justice."' 

^5  The  views  of  the  author  find  support  in  the  arguments  and  in  the  opin- 
ions of  m3n  emuiont  for  their  learninf?  and  ability.  Thus,  in  the  leading  case 
in  New  York,  (Staats  v.  Ten  Eyck,  supra.)  where  the  limited  rule  in  such 
cases  was  adopted,  Living'ston,  J.,  who  delivered  the  opinion  of  the  court,  thus 
expresses  his  views:  "  To  refund  the  consideration  even  Avith  interest  may 
be  a  very  inadequate  compensation  when  the  property  is  greatly  enhanced 
in  value,  and  where  the  same  money  might  have  been  laid  out  to  equal 
advantage  elsewhere." 

In  Pitcher  v.  Livingston,  where  the  court  adhered  to  the  rule  of  prmcipal 
and  interest  as  the  measure  of  damages.  Spencer,  J.,  who  dissented,  thus 
expresses  his  views :  ' "  It  has,  I  think,  been  erroneously  said,  that  the  defect 
of  title  is  a  case  of  mutual  error.  On  the  contrary,  from  my  observation  and 
knowledge  of  the  sale  of  lands,  I  think  the  defect  of  title  is  a  matter  gen- 
erally and  almost  universally  in  the  peculiar  knowledge  of  the  vendor.  It  is 
a  rare  case  for  a  purchaser  to  investigate  the  seller's  title;  and  in  most  cases 
it  is  impossible. 

The  buyer  relies  on  the  allegations  of  the  vendor,  on  his  apparent  respon- 
sibility to  reimburse  in  case  of  eviction;  upon  his  possession  of  the  property, 
and  emphatically  on  his  covenants  of  title  and  for  quiet  enjoyment.  These 
covenants,  whenever  they  occur  in  a  deed,  seem  to  me  to  indicate,  beyond 
all  question,  that  the  purchaser  did  not  mean  to  rely  on  the  title  of  the  ven- 
dor alone,  but  that  he  meant  to  have  his  personal  Uability  as  his  guaranty. 
The  language  of  the  vendor  corresponds  with  that  of  the  purchaser,  and 


COVENANTS— EEAL  ESTATE.  391 

Interest  as  Damages. 

§  466.  Interest  as  Damages. — The  question  of  interest 
as  damages  generally  turns  on  the  fact  whether  or  not  the 
lands  were  improved,  and  the  plaintiff  has  occupied  or  enjoyed 

holds  out  the  idea  that  he  had  sold  the  land  at  his  own  peril,  and  that  he 
would  warrant  it  to  be  his. 

Extravagant  cases  have  been  put,  hypothetically,  to  show  the  enormous 
injustice  of  the  rule,  that  the  vendor  must  be  answerable  for  the  improve- 
ments. It  has  been  asked,  if  a  piece  of  land  thus  sold,  with  covenants, 
should  become  the  site  of  a  flourishing  city,  what  fortune  could,  under  a 
rule  allowing  for  improvements,  withstand  ruin  ?  It  may  be  retorted  to  such 
a  question,  'What  is  to  become  of  the  industrious  citizen  or  mechanic  who 
has  spent  his  hard  earnings  in  erecting  his  little  house  or  workshop  relying 
on  the  covenant  of  his  deed,  if  he  can  only  get  back  his  purchase  money  and 
interest?'  It  is  not  fair,  however,  to  test  a  rule  by  extreme  cases.  *  *  * 
I  lay  it  down  as  a  rule,  which  cannot  require  much  illustration  to  enforce  it, 
on  the  score  of  analogy  and  justice,  that  in  actions  for  a  breach  of  covenant, 
the  damages  are  to  be  estimated  according  to  the  value  of  the  tiling  when 
the  covenant  was  broken.  Thus,  in  a  covenant  for  the  delivery  of  specific 
property  at  a  given  day,  in  case  of  failure,  the  rule  invariably  is,  to  allow  in 
damages  the  value  of  the  thing  on  the  day  it  ought  to  have  been  delivered,  and 
when  the  covenant  was  broken.  So  on  contracts  for  the  delivery  of  stock, 
the  value  at  the  time  it  ought  to  have  been  delivered,  and  even  at  the  time 
of  trial  has  been  the  criterion  of  damages.  In  the  present  case  the  defend- 
ant covenanted  that  the  plaintiff  should  quietly  enjoy  the  land  sold.  This 
covenant  was  violated  when  the  plaintiff  was  evicted;  and  he  has  lost  by  the 
breach  of  the  covenant,  not  only  the  quiet  enjoyment  of  the  land,  but  the 
usufruct  of  those  erections  and  improvements,  without  which,  it  is  fair  to 
say,  that  the  land  itself  could  not  have  been  enjoyed  agreeable  to  the  inten- 
tion of  the  parties.  It  necessarily  follows  that,  had  the  defendant  kept  his 
covenant  and  allowed  the  plaintiff  to  enjoy  the  premises  sold,  he  would  not 
have  been  deprived  of  those  improvements  made  on  the  thing  itself,  the 
making  of  which  was  an  inducement  to  the  purchase.  How  it  can  be  called 
severe  doctrine,  to  compel  the  vendor  to  respond  in  damages  for  ordinary  and 
necessary  improvements,  I  confess  myself  incapable  of  perceiving,  when  he 
has  undertaken  for  a  price  paid  to  assure  to  the  vendee  the  validity  of  his 
title.  *  *  *  It  follows,  from  the  view  I  have  taken  of  this  question,  that 
the  plaintiff,  under  the  covenant  for  quiet  enjoyment,  may  recover  the 
improvements,  and  that  under  the  covenant  of  seizin  he  could  not,  unless  the 
grantee  was  seized  by  virtue  of  the  deed  and  has  been  evicted  under  a  title 
paramount. 

I  have  not  entered  into  any  examination  of  the  ancient  method  of  pro- 
ceeding under  the  tvarrantia  cJiartce,  and  the  rule  which  obtained  in  such 
case,  under  the  writ  of  cajye  ad  valentiam,  because  the  covenants  of  warranty 
were  then  considered  as  real  covenants  binding  only  on  the  grantor  and  his 
heirs.    It  has,  howeverj  been  urged  that  the  introduction  of  the  covenants 


392  THE  LAW  OF  DAMAGES. 


Interest  as  Damages. 


the  benefit  of  the  premises  without  the  liability  to  account  for 
the  mesne  profits.  In  case  the  lands  are  improved,  and  he 
has  enjoyed  the  premises  and  there  is  no  liability  to  account 

of  seizin  and  for  quiet  enjoyment,  were  substitutes  for  the  covenant  of  war- 
ranty, and  that  the  same  rule  ought  to  follow  the  substituted  covenants.  It 
appears  to  me  much  more  proper  to  consider  the  introduction  of  personal 
covenants  in  the  alienation  of  real  property  as  immediately  assimilating 
themselves  to  other  personal  covenants  and  contracts,  and  as  subject  to  the 
same  rules  of  construction,  and  the  same  rule  of  damages  when  they  are 
broken." 

And  Mr.  Justice  Gould,  in  BrinkerhofF  v.  Phelps,  24  Barb.,  103,  expresses 
his  opinion  on  this  question  as  follows:  *'I  cannot  say  that  I  have  ever  been 
satisfied  with  the  rule  that  in  an  action  on  a  covenant  for  quiet  enjoyment, 
1  am  entitled  to  recover  not  what  the  premises  I  enjoy  are  worth  when  I  am 
evicted,  but  merely  what  I  paid  for  the  land,  without  any  reference  to  my 
improvements.  In  the  leading  case  in  this  state  (4  John.  3),  although  the 
opinions  which  so  hold  ai-e  very  able,  and  entitled  to  profound  respect,  my 
reason  has  ever  been  better  satisfied  with  the  dissenting  opinion  of  Mr.  Jus- 
tice Spencer.  He  says:  'In  actions  for  a  breach  of  covenant,  the  damages 
are  to  be  estimated  according  to  the  value  of  the  thing,  when  the  covenant 
was  broken.'"  And  in  reply  to  the  majority  of  the  court  in  that  case,  that 
"If  a  grantee  be  desirous  of  receiving  the  value  of  the  land  at  the  time  of 
the  eviction,  he  may  by  apt  covenants  in  the  deed,  if  a  grantor  will  consent, 
secure  such  benefit  to  himself, ' '  observes :  "What  those  apt  covenants  would  be, 
when  ill  4  John,  3,  the  same  court  say,  'that  a  covenant  for  further  assurance 
is  also  in  subordination  to  the  superior  covenant  of  seizin,  and  cannot  go 
beyond  it  in  a  rule  of  damages,'  it  might  be  difficult  to  imagine.  If  neither 
a  covenant  that  I  shall  enjoy  the  property,  nor  a  covenant  to  make  my  title 
good  goes  beyond  the  bare  covenant  that  the  grantor  has  title  at  the  time  he 
conveys,  what  form  of  personal  promise  (or  covenant)  would  relieve  me  from 
the  incubus  of  the  permanent  covenant  of  seizin." 

Mr.  Rawle,  in  his  valuable  treatise  on  Covenants  for  Title,  pp.  244,  245, 
admits  a  practical  impossibility  of  adopting  rules  that  shall  do  entire  justice 
to  parties  in  such  cases.  And  he  remarks:  "But  the  common  law  rule  is 
capable  of  being  modified  hj  circumstances  in  a  court  of  law,  or  by  a  court 
of  equity.  If  the  vendor  has  made  use  of  fraud  or  concealment,  an  action 
on  the  case  in  the  nature  of  a  writ  of  deceit,  may  restore  to  the  purchaser 
the  value  of  all  he  has  lost.  If  the  purchaser  had,  with  knowledge  of  the 
defect,  gone  on  with  his  improvements,  his  claim  for  their  allowance  would 
seem  to  rest  on  less  strong  grounds  than  if  he  were  ignorant,  notwithstand- 
ing he  has  taken  the  covenants  for  his  protection  against  the  defect.  If  the 
paramount  owner  has  lain  by,  and  seen  these  improvements  go  on  without 
asserting  his  claim  to  the  estate,  if  it  be  doubtful,  if  this  can,  in  a  court  of 
law  be  set  up  as  an  equitable  defense  to  an  action  for  the  mense  profits,  it  is 


COVEN'ANTS— KEAL  ESTATE.  393 

Interest  as  Damages. 

for  mesne  profits,  this  lias  generally  been  held  equivalent  to 
interest  upon  the  consideration,  and  no  interest  is  recoverable. 
But  in  other  cases,  interest  is  a  proper  element  of  damages."' 

And  where  the  right  to  recover  for  mesne  profits  is  limited 
by  statute,  and  the  lands  are  improved,  and  the  grantee  has 
had  j)ossession,  the  right  to  interest,  as  an  element  of  damages, 
is  limited  to  the  period  for  which  mesne  profits  could  be 
recovered  by  the  owner  of  the  paramount  title.  The  theory 
being  that  the  use  of  the  land  is  equivalent  to  interest,  and 
that  this  is  all  that  should  be  allowed  under  the  general  rule. 
Thus,  in  Ohio,  where  the  period  during  which  the  tenant  is 
required  to  account  to  the  true  owner  for  mesne  profits,  in  the 
action  of  ejectment,  is  four  years,  the  plaintiff  was  held  enti- 
tled to  recover  interest  on  the  consideration  paid,  for  only 
four  years." 

So  in  Connecticut,  where  one  piece  of  the  land  was  under 
improvement  and  one  not  improved.  The  measure  of  dama- 
ges in  the  former  case  was  held  to  be  the  consideration  with- 
out interest,  and  in  the  latter  the  consideration  with  interest, 
and  the  expenses  of  the  eviction  suit." 

The  general  doctrine  seems  to  be  that,  where  the  grantee 
has  enjoyed  the  possession  of  the  premises  and  is  not  liable  to 

very  certain  that  it  would  be  recognized  in  a  court  of  equity."  See,  also, 
Green  v.  Biddle,  8  Wheat.  (U.  S.),  77;  Lord  Cawdor  v.  Lewis,  1  Young  & 
Coll.  (Ex.),  427;  Bright  v.  Boyd,  1  Story,  478;  Sugden  on  Vend.,  614. 

Owing  to  the  restricted  rule  of  damages  in  such  cases  in  New  York  and 
other  states,  the  following  strange  anomaly  exists.  If  a  vendor  contracts  to 
sell  and  convey  at  a  future  time,  and  in  fact,  at  the  time  has  no  title,  and  is 
unable  to  convey  at  the  time  stipulated  in  his  contract,  he  is  required  to 
indemnify  the  purchaser,  and  compensate  him  for  improvements  made  on 
the  faith  of  the  vendor's  promise,  but  if  he  executes  a  deed  with  full  cove- 
nants, and  there  is  a  breach  and  a  failure  of  title,  the  vendee  can  only  recover 
the  consideration  and  interest.     See,  post,  §  479,  et  seq. 

66  Cox  V.  Henry,  32  Pa.  St.,  18;  Whetlock  v.  Crew,  28  Geo.,  289. 

67  Clark  v.  Parr,  14  Ohio,  118.  See,  also,  Fernander  v.Duim,  19  Geo.,  497; 
Harding  v.  Larkin,  41  111.,  413;  Wade  v.  Comstock,  11  Ohio  St.,  71;  Flint 
V.  Steadman,  36  Vt.,  210;  McNear  v.  McComber,  etal.,  18  la.,  12. 

«3  Castle  V.  Pierce,  2  Root,  294. 


394  THE  LAW  OF  DAMAGES. 


Eule  in  Reference  to  Costs,  etc.— Where  Eviction  is  only  Partial. 


account  for  tlie  mesne  profits,  interest  is  not  allowed,  other- 
wise it  is." 

§  467.  The  Rule  in  Reference  to  Costs  and  Counsel 
fees  paid  in  the  Eviction  Suit— The  decisions  on  this  ques- 
tion are  somewhat  conflicting  and  various  in  the  different  states. 
In  several  states  it  has  recently  been  held,  that  the  measure  of 
damages  on  a  breach  of  warranty  in  a  deed,  is  the  value  of 
the  property  at  the  time  of  the  conveyance  and  interest 
thereon,  together  with  the  necessary  costs  and  expenses 
incurred  in  defending  the  title,  and  that  such  costs  and  ex- 
penses include  a  reasonable  counsel  fee.'" 

But  in  Iowa,  where  the  grantor  of  real  estate  conveyed  by 
deed  with  covenants  of  seizin,  right  to  convey,  against  incum- 
brances, and  of  warranty,  and  at  the  time  the  legal  title  was 
in  another  who  had  acquired  the  same  through  fraud,  it  was 
held: 

"  1.  That  the  covenant  was  broken  at  the  time  of  the  con- 
veyance. 

"  2.  But  that  the  grantee  to  entitle  himself  to  recover 
sums  expended  in  proceedings  to  quiet  the  title,  should  have 
first  demanded  proceedings  by  his  grantor  for  that  purpose." 

§  475.    Where  the  Eviction  is  only  Partial.— Where 

the  enjoyment  of  only  a  portion  of  the  land  has  been  disturbed, 
or  there  has  been  an  eviction  from  only  a  part  of  the  same, 
the  general  rule  is,  that  the  grantee  can  recover  only  in  the 
proportion  which  the  value  of  the  premises  from  which  he 
has  been  thus  evicted  bears  to  the  whole  premises  and  the 
interest  thereon,  and  costs  and  expenses,  subject  to  the  same 

^  Sedg.  on  Dam.,  170  and  171,  and  notes  to  6th  ed. 

70  Robertson  v.  Lemon,  2  Bush.  (Ky.),  301;  Dalton  v.  Bowker,  8Nev.,  190; 
Keeler  v.  Wood,  30  Vt.,  242;  Smith  v.  Sprague,  40  Id.,  43;  Rowe  v.  Heath, 
23  Tex.,  614. 

71  Yokam  v.  Thomas,  15  la.,  67.  See,  also,  Jetter  v.  Glenn,  9  Rich.  (S. 
C),  374,  where  it  was  held  that  counsel  fees,  paid  in  defense  of  a  claim  of 
dower,  could  not  be  recovered,  although  other  expenses  could. 


COVENANTS— REAL  ESTATE.  395 

Where  Eviction  is  only  Partial. 

qualifications  and  conditions  applicable  in  cases  of  total  evic- 
tion. If  there  is  only  a  partial  breach,  he  can  only  recover 
^ro  tanto.  Thus,  in  New  York,  where  it  was  insisted  that  a 
partial  failure  of  title  entitled  the  grantee  to  recover  the 
entire  consideration,  it  was  held  otherwise  by  the  court,  and 
that  it  was  competent  for  the  defendant  to  show  that  the  part, 
in  reference  to  which  the  title  had  failed,  was  inferior  to  the 
balance  of  the  land  conveyed;  and  this  principle  was,  by  Kent, 
C.  J.,  declared  to  be  "  deducible  from  the  year  books,  and 
enforced  by  the  analogies  of  the  civil  law."  " 

And  where,  in  an  action  for  a  partial  failure  of  title,  it  was 
contended  that  the  measure  of  damages,  in  case  of  partial 
eviction,  should  be  in  the  proportion  which  the  quantity  of 
the  premises,  to  which  the  title  failed,  bore  to  the  whole  prem- 
ises conveyed;  the  court  held  otherwise,  and  that  the  propor- 
tion should  be  of  the  value  and  not  of  the  quantity."  And 
where  a  claim  for  dower  was  established  by  the  widow  of  the 
grantor,  against  his  grantee,  it  was  held  that  the  measure  of 
damages  in  an  action  on  the  covenant  of  warranty,  was  that 
portion  of  one-third  of  the  amount  paid,  which  the  value  of 
the  widow's  life  estate,  in  the  assignment  made,  bore  to  the 
value  of  the  fee  simple  of  the  same.'* 

So,  in  Nevada,  where  the  eviction  was  partial,  being  a  part 
of  the  water  of  an  irrigating  creek,  the  damages  on  this  cove- 
nant was  apportioned  to  the  value  of  the  property  lost  as  com- 
pared with  the  value  of  the  property  preserved." 

72  Morris  v.  Phelps,  5  Johns.,  49;  Guthrie  v.Pugsley,  12  Id.,  126;  Hunt  v. 
Orwig,  17  B.  Mon.  (Ky.),  73;  Beaupland  v.  McKeen,  28  Penn.  St.,  124;  Rains 
V.  Calaway,  27  Tex.,  678;  "Walker  v.  Johnson,  8  Eng.  (Ark.),  522;  Downer  v. 
Smith,  38  Vt.,  464;  Kerby  v.  Richardson,  17  Geo.,  602;  Griffin  v.  Reynolds, 
17  How.  (N.  Y.),  609;  Furness  v.  Furgason,  15  N.  Y.,  437;  Hoot  v.  Spade, 
20  Ind.,  326;  Philips  v.  Rechert,  17  Ind..  120;  Wiley  v.  Howard,  15  Ind., 
169;  Brant  v.  Foster,  5  la.,  287;  Major  v.  Dunnavant,  25  111.,  262. 

73  Cornell  v.  Jackson,  3  Gush.,  506.  See,  also,  Mitchell  v.  Mills,  17  Ohio, 
601;  King  v.  Lyle,  8  Serg.  &  Raw.,  166. 

74  HiU  V.  Golden,  16  B.  Mon.  (Ky.),  551. 
K  Dalton  V.  Bowker,  8  Nev.,  190  (1873). 


396  THE  LAW  OF  DAMAGES. 

Where  Grantee  Protects  Himself  by  a  Purchase  of  the  Superior  Title,  etc. 

§  476.  And,  where  there  is  a  partial  breach  of  the  cove- 
nant, interest  will  be  allowed  upon  the  value  of  the  property 
to  which  the  title  has  failed."  But,  where  there  was  a  con- 
veyance with  full  covenants,  and  at  the  time  the  legal  title 
was  in  another  who  had  acquired  the  same  by  fraud,  it  was 
held,  that  to  entitle  the  grantee  to  recover  the  sum  expended 
in  proceedings  to  quiet  the  title,  he  should  have  first  demanded 
proceedings  of  the  grantor  for  that  purpose."  So  where  there 
have  been  fraudulent  representations  in  the  sale  of  real  estate, 
the  measure  of  damage  is  the  difference  between  the  value  of 
the  land  as  it  was  at  the  time  of  the  purchase  and  the  value 
of  the  land  as  represented." 

§  477.  Where  the  Grantee  Protects  Himself  by  a 
Purchase  of  the  Superior  Title,  or  Yields  to  the  Title. 

— Analogous  to  the  case  of  partial  loss  of  the  premises  con- 
veyed, is  that  where  the  covenantee  purchases  the  paramount 
title,  in  which  case  the  measure  of  damages  is  the  actual  loss 
sustained  thereby. 

Thus,  in  Illinois,  where  the  action  was  on  the  covenant  of 
warranty,  and  the  plaintiff  had  purchased  in  an  outstanding 
superior  title,  it  was  recently  held,  that  the  measure  of  dam- 
ages was  the  amount  paid  therefor  with  interest.'" 

And  in  California,   in   an   action   on  a  covenant  for  quiet 
enjoyment,  it  was  held  that  the  covenant  was  broken  by  an 
involuntary  loss  of  possession,  by  reason  of  the  hostile  asser- 
ts McNear  v.  McComber,  18  la.,  12. 

"  Yokum  V.  Thomas,  1-5  la.,  67.  See,  also,  Jeter  v.  Glenn,  9  Rich.  (S.  C), 
374;  Critchfield  v.  Starr,  36  Md.,  129;  Nendel  v.  North,  24  Wis.,  223. 

78  Likes  V.  Baer,  8  la..  368;  Gales  v.  Reynolds,  13  la.,  1 ;  Moberly  v.  Alex- 
ander, 19  la.,  162;  Hanna  v.  Cummings,  3  la.,  583;  Hallam  v.  Todhunter, 
24  la.,  166.  So  in  Iowa,  it  was  held,  in  an  action  for  the  breach  of  a  contract 
for  the  exchange  of  lands,  where  the  plaintiff  had  conveyed  that  which  he 
had  agreed  to  convey,  and  the  grantee  failed  to  convey,  the  measure  of  dam- 
ages was  the  value  of  the  land  which  by  the  contract  the  grantor  was  entitled 
to  receive  from  the  defendant.  Devin  v.  Himer,  29  la.,  297. 
»  Claycomb  v.  Hunger,  51  HI.,  373  (1869). 


COVENANTS— REAL  ESTATE.  397 

Wliere  Grantee  Protects  Himself  by  a  Purchase  of  the  Superior  Title,  etc. 

tion  of  an  irresistible  title;  that  the  paramount  title  need  not 
be  established  bj  a  judgment,  before  the  covenantee  will  be 
authorized  to  surrender  the  possession;  that  there  need  not  be 
ap  actual  dispossession;  that  if  the  paramount  title  is  so 
asserted  that  the  grantee  must  yield  the  possession,  the  cove- 
nantee may  purchase  or  lease  of  the  true  owner,  and  this  will 
be  a  sufficient  eviction  to  constitute  a  breach.  It  was  farther 
held,  that  the  measure  of  damages,  where  the  plaintiff  has 
purchased  the  paramount  title,  is  the  sum  actually  and  in  good 
faith  paid  therefor,  and  the  amount  expended  in  defending 
his  possession,  provided  such  damage  does  not  exceed  the 
purchase  money  and  interest.*"  So,  likewise,  it  has  been 
recently  held  in  New  Jersey,  that  neither  by  weight  of  author- 
ity, nor  upon  jDrinciple,  is  an  eviction  of  the  covenantee 
from  the  actual  possession  of  the  premises,  whether  by  pro- 
cess of  law  or  otherwise,  necessary  to  complete  his  remedy 
upon  the  covenant  of  warranty,  but  it  is  sufficient,  if  he  nec- 
essaril}^  must  and  does  yield  to  the  superior  title."' 

§  478.  Under  a  covenant  of  warranty  in  a  deed,  the  pur- 
chaser may  maintain  an  action  against  the  grantor,  for  the 
amount  of  an  assessment  of  taxes  ppon  the  property,  previous 
to  the  conveyance  and  paid  by  the  grantee.*^  And  where  a 
general  covenant  of  warranty  in  a  deed,  covers  a  prescriptive 
right  of  wa}'  over  the  land  held  by  a  third  party,  and  the 
grantee  is  mulcted  in  damages,  for  obstructing  such  right  of 
way,  he  may  recover  from  the  grantor  the  amount."^ 

In  Wisconsin,  where  E.,  having  recovered  land  in  ejectment 
against  F.,  sold  and  conveyed  it  to  him  for  a  specified  consid- 
eration in  money,  in  lieu  of  which  he  then  accepted  an 
assignment  of  F.'s  right  of  action,  upon  the  covenants  of  L., 

8°  McGary  v.  Hastings,  39  Cal.,  360. 

8'  KeUogg  V.  Piatt,  33  N.  J.  L.,   (4  Vr.),  328;  2  Gr.  Ev.,  §  244;  Rawle  on 
Gov.,  256,  et  seq. 
8^  RundeU  v.  Lakey,  40  N.  Y.,  513. 
83  Bridger  v.  Pierson,  1  Lans,  (N.  Y.),  481  (1869). 


398  THE  LAW  OF  DAMAGES. 

Executoi-y  Contracts  for  Sale  of  Lands— Breach  on  Part  of  Vendor. 

under  whose  deed  F.  had  first  entered  on  the  land;  it  was  held, 
that  the  measure  of  E.'s  recovery  against  L.  on  the  covenants 
of  warranty  and  against  incumbrances,  was  the  amount  F.  had 
agreed  to  pay  him  for  the  land,  and  interest,  with  perhaps 
such  sums  for  costs  of  the  ejectment  suit  as  F.  himself  might 
have  recovered  if  the  suit  had  been  brought  in  his  name; 
except  that  in  no  event  could  it  exceed  the  consideration 
named  in,  or  paid  for  the  conveyance  from  L.  to  F/* 

And,  in  an  action  by  a  vendor  to  foreclose  a  mortgage 
given  for  the  purchase  money,  and  Nvhere  he  has  covenanted 
for  quiet  and  peaceable  possession,  the  purchaser  is  entitled  to 
have  deducted  from  the  mortgage  debt  such  actual  damages 
as  he  may  have  sustained  from  suits  commenced  by  the  ven- 
dor to  set  aside  the  deed  and  for  partition,  etc.,  on  the  ground 
of  pretended  fraud,  whereby  a  re-sale  by  the  purchaser  has 
been  defeated,  although  the  suits  liave  been  withdrawn." 

But,  it  is  held,  that  a  warranty  for  quiet  enjoyment  extended 
only  to  the  damages  involved  in  an  eviction;  and  that  damages 
for  personal  injuries  received  from  an  assault  and  battery  com- 
mitted by  an  agent  of  the  defendant,  in  ejecting  the  tenant,  are 
not  recoverable  on  the  covenant;  but  that,  in  order  to  hold  the 
covenantor  in  such  a  case,  his  complicity  in  the  violence  used 
must  be  shown. ^° 

§  479.    Executory  Contracts  for  the  Sale  of  Land.— 

Controversies  in  reference  to  damages  frequently  arise  on 
breaches  of  contracts  for  the  sale  and  conveyance  of  lands, 
whether  in  writing  and  under  seal  or  not;  and  where  the 
breach  is  on  the  part  of  the  vendor  or  purchaser. 

§  480.     Breach  on  the  Part  of  the  Vendor.— The 

authorities  on  the  question  of  damages,  where  the  breach  is  on 

84  Eaton  V.  Lyman,  24  Wis.,  438  (1869). 

85  Akerly  v.  Vilas,  23  Wis.,  207  (1868).  See,  also,  Baker  v.  Corbett,  28 
Iowa,  317,  where  the  same  rule  is  applied  to  a  title  bond. 

^  Jones  V.  Worley,  21  La.  An.,  404. 


COYEN ANTS— REAL  ESTATE.  390 

Where  Vendor  Acts  in  Good  Faith. 

the  part  of  the  vendor,  are  conflicting  and  inharmonious.  On 
the  one  hand,  it  is  claimed  that  the  measure  of  damages 
should  be  the  same  as  on  the  breach  of  the  covenant  of  title 
in  a  deed,  which,  in  England,  and  perhaps  generally  in  this 
country,  as  we  have  seen,^°  is  held  to  be  the  consideration 
money  and  interest.  While,  on  the  other  hand,  it  is  claimed 
that  the  case  is  analogous  to  that  of  a  breach  of  contract  to 
deliver  personal  property,  where  the  consideration  has  been 
paid,  in  which  case,  as  we  have  seen,"  the  general  rule  of 
damages  is  the  highest  value  of  the  property  up  to  the  time 
of  bringing  the  suit,  or  even  the  time  of  trial. 

§  481.    Where  the  Vendor  Acts  in  Good  Faith.— 

In  an  action  for  the  breach  of  contract,  the  commonly  received 
doctrine,  both  in  England  and  in  this  country,  is  that  where 
the  consideration  has  been  paid  on  a  contract  to  convey  lands 
at  a  future  time,  if  there  is  a  breach  on  the  part  of  the  seller, 
and  he  has  acted  in  good  faith,  and  the  failure  arises  from  no 
intentional  fault  or  wrong  of  his  own,  the  purchaser  can  only 
recover  the  consideration  paid  and  interest.''  And  where, 
under  similar  circumstances,  no  consideration  has  been 
advanced,  the  purchaser  can  recover  nothing,  or  only  nominal 
damages. 

In  the  leading  English  case,  relating  to  this  question.  Sir 
William  Blackstone  said:  "  These  contracts  are  merely  upon 
condition,  frequently  expressed  but  always  implied,  that  the 
vendor  has  a  good  title.  If  he  has  not,  the  return  of  the  deposit 
with  the  interest  and  costs  is  all  that  can  be  expected." 

And  De  Gray,  C.  J.,  said:  "TJi^on  a  contract  for  a  pur- 
chase, if  the  title  proves  bad,  and  the  vendor  is  (without 
fraud,)  incapable  of  making  a  good  one,  I  do  not  think  that 


36  Ante,  §  443,  et  seq. 

46  Ante,  §  246. 

56  See,  Mayne  on  Dam.,  91,  et  seq. 


400  THE  LAW  OF  DAMAGES. 

Where  Vendor  Acts  in  Good  Faith. 

the  purchaser  can  be  entitled  to  any  damages  for  the  fancied 
goodness  of  the  bargain  which  he  supposes  he  has  lost."  " 

The  doctrine  of  this  decision  seems  to  have  been  respected 
in  most,  if  not  all,  subsequent  adjudications  involving  the 
question,  and  the  apparent  conflicts  in  the  decisions  are  gen- 
erally owing  to  different  views  of  the  facts  as  furnishing  evi- 
dence of  fraud  on  the  part  of  the  vendor. 

The  application  of  the  rule  we  have  stated,  with  its  qualifi- 
cations, will  be  illustrated  by  the  following  cases: 

In  Walker  v.  Moore,  the  plaintiff  contracted  with  the 
defendant  for  the  purchase  of  real  estate,  for  whicli  the 
defendant,  acting  in  good  faith,  delivered  an  abstract  showing 
a  good  title,  and  before  any  further  investigation  of  the  title 
the  plaintiff  contracted  for  the  sale  of  several  portions  of  tlie 
property  at  a  considerable  profit.  The  title  to  the  property 
proved  defective,  and  the  subsequent  purchasers  refused  to 
complete  their  purchases,  and  the  plaintiff  refused  to  com- 
plete his  purchase  of  the  defendant,  and  brought  an  action 
wherein  he  claimed  as  damages  the  expenses  he  had  incurred 
in  the  investigation  of  the  title;  the  profit  that  would  have 
accrued  from  a  re-sale  of  the  property;  the  expense  attending 
the  re-sale,  and  the  sums  which  he  was  liable  to  pay  the  sub- 
contractors for  the  expenses  incurred  by  them  in  examining 
the  title.  But  the  court  held  that  he  was  entitled  to  recover 
only  the  expenses  he  had  incurred  in  the  investigation  of 
the  title,  and  nominal  damages  for  the  breach  of  contract,  as 
no  fraud  could  be  imputed  to  the  vendor.  In  this  case.  Park, 
B.,  said:  "In  the  absence  of  any  express  stipulation  about 
it,  the  parties  must  be  considered  as  content  that  the  damages, 
in  the  event  of  the  title  proving  defective,  shall  be  measured 
in  the  ordinary  way,  and  that  excludes  the  claim  of  damages 
on  account  of  the  supposed  goodness  of  the  bargain.     Here, 

87  Flureau  v.  ThomliiU,  2  Wm.  Black.,  1078  (1776).  See,  also,  McNair  v. 
Compton,  35  Pa.  St.,  23  (1859). 


COYENANTS— EEAL  ESTATE.  401 

General  Doctrine. 

however,  there  are  two  other  sums  claimed;  but  under  the 
circumstances  stated  in  the  award,  I  think  the  phiintiff  is  not 
entitled  to  them.  It  is  urged  that  no  defect  appeared  upon 
the  abstract,  and  that  it  was  only  discovered  on  comparing 
the  abstract  with  the  deeds.  Assuming  that  to  be  so, 
(although  it  is  not  expressly  found,)  yet,  as  there  is  no  fraud, 
negligence  in  preparing  the  abstract  is  the  only  thing  that  can 
be  imputed  to  the  defendants;  and  the  plaintiff,  by  exercising 
ordinary  care,  might  have  averted  the  loss  that  had  arisen  from 
that  negligence."  ^' 

§  482.  General  Doctrine. — Although  the  principle  con- 
tained in  the  decision  in  Flureau  v.  Thornhill^  has  ever  since 
been  respected  by  the  courts,  many  cases  seem  to  turn  upon 
facts  relating  to  the  hona  fides  of  the  vendor,  that  are  curious 
if  not  instructive. 

Thus,  in  Paunsett  v.  Fuller^  the  defendant  agreed  to  sell 
the  plaintiff  the  right  of  shooting  on  a  third  party's  manor 
for  a  specified  time,  and  it  appeared  that  he  had  no  title 
which  he  could  convey,  but  a  mere  agreement  from  the  owner 
to  let  him  the  shooting  on  the  manor  for  five  years,  at  a  spec- 
ified rent,  he  supplying  the  owner  with  game;  and,  it  was  held, 
that  as  the  defendant,  as  a  layman,  had  a  fair  right  to  believe 
he  had  the  power  to  sell  which  he  professed  to  have,  the  plain- 
tiff could  recover  nothing  beyond  the  expenses  of  investi- 
gating the  title,  and  nominal  damages  for  the  breach." 

And,  in  Sihes  v.  Wild,  the  principle  we  have  been  consid- 
ering is  further  recognized,  though  the  facts  of  the  case  can 
hardly  be  distinguished  from  others  where  the  result  was  dif- 
ferent. The  facts  were  as  follows:  Real  estate  had  been 
devised  in  trust  to  the  defendants  to  sell;  the  solicitor 
employed  in   the  affairs  of   the  trust,  knew  that  the  legal 

88  10  Bam.  &  Cress.,  416  (1829).  See,  also,  Buckley  v.  Dawson,  4  Irish  C. 
L.  (N.  S.),  211. 

89  17  C.  B.,  660. 

26 


402  THE  LAW  OF  DAMAGES. 

General  Doctrine. 

estate  was  in  trustees  for  the  purpose  of  securing  an  annuity 
to  the  widow  of  the  devisor,  and  that  no  unincumbered  title 
could  be  made  to  any  part  of  the  estate,  unless  she  and 
the  trustees  should  discharge  the  part  sold  from  the  trust. 
This  she  verbally  agreed  to  do,  but  afterwards  refused,  and  the 
solicitor  was  aware  that  she  was  not  bound  by  her  verbal 
agreement.  In  an  action  for  damages  for  the  breach  of  the 
cantract  to  sell,  the  jury  found  that  the  defendants  hona  fide 
believed  they  would  be  able  to  make  a  good  title,  free  from 
incumbrance,  and  had  good  grounds  for  so  believing;  and  tlie 
Court  of  Queen's  Bench  held,  that  the  purchaser  was  not,  on 
the  facts  found,  entitled  to  damages  for  the  loss  of  his  bargain. 
And  this  opinion  was  afterwards  affirmed  in  the  Exchequer 
Chamber."" 

§  483 .  The  foregoing  doctrine  has  been  incidentally  recog- 
nized in  many  cases  which  we  shall  hereafter  consider,  where 
the  seller  had  been  guilty  of  fraud  or  bad  faith;  and  also  in 
cases  free  from  such  charges.  Thus,  in  Pennsylvania,  in  an 
action  by  the  vendee  against  the  vendor  for  the  breach  of  a 
parol  contract  for  the  sale  of  land,  the  court  held,  that  in  the 
absence  of  fraud  the  measure  of  damages,  where  the  purchase 
money  or  any  part  of  the  same  is  paid,  is  the  amount  of  the 
purchase  money  and  interest  and  expenses;  or,  if  no  part  of 
the  purchase  money  has  been  paid,  the  expenses  and  trouble 
incurred  by  the  vendee  in  endeavoring  to  procure  a  title;  and 
that  in  the  absence  of  fraud  he  cannot  recover  damages  for 
the  loss  of  a  good  bargain.  The  court  said :  "  A  vendor 
"who,  without  fraud,  is  unable  to  convey  the  title  to  real  estate, 
which  he  has  agreed  to  convey,  is  subject  to  a  measure  of 
damages  that  regards  the  consideration  paid;  or  where  it  has 
not  been  paid,  the  expenses  and  trouble  incurred  by  the  vendee 

soSikes  V.  Wild,  1  Best  &  S.,  587;  5  L.  T.  (N.  S.),  422;  4  B.  & 
S.,  421 ;  32  L.  J.  (N.  S.),  Q.  B.,  375.  See,  also,  Sug.  on  Vend.  (14  ed.),  361; 
Locke  V.  Furze,  34  L.  J.  (N.  S.),  C.  P.,  201;  19  C.  B.  (N.  S.),  96;  1  L.  R.  (C. 
P.),  441  (1865). 


COVENANTS— EEAL  ESTATE.  403 

Where  Vendor  Acts  in  Bad  Faith— Rule. 

has  always  been  the  rule  in  Pennsylvania,  as  may  be  seen  by 
consulting  the  authorities.'" 

The  value  of  the  land  is  sometimes  spoken  of  as  the  meas- 
ure of  damages,  but  that  means  the  value  as  measured  by  the 
consideration,  rather  than  the  difference  between  the  considera- 
tion and  what  the  land  will  fetch  in  the  market.  The  parties 
fix  their  own  estimate  of  the  value  when  they  fix  the  consider 
ation.""' 

§  484.    Where  the  Vendor  Acts  in  Bad  Faith— Rule. 

—  A  diflerent  rule,  however,  prevails  where  the  vendor  is 
guilty  of  fraud  or  bad  faith.  There  appears  to  be  an  aversion 
to  the  doctrine  that  the  motives  of  the  parties  can  affect  the 
measure  of  damages  on  a  breach  of  contract.  This  aversion 
is  based  upon  the  technical  princip]e  in  pleading  recognized  at 
common  law,  that  the  intent  of  a  party  in  such  cases  cannot 
be  averred  in  the  pleadings  except  as  a  matter  of  form,  nor 
evidence  be  given  in  support  of  it,  when  thus  formally  stated; 
and  that  damages  should  not,  therefore,  be  made  to  depend 
upon  it.  If  a  reform  is  made  in  the  ajiplication  of  principles 
in  the  measure  of  damages,  why  not  also  in  the  law  of  plead- 
ino;s  and  evidence? 

There  can  be  no  insuperable  objection  to  such  a  reform,  and 
if  a  rule  of  damages  should  obtain,  more  in  accord  with 
the  2:)rinciples  of  justice  and  equity  than  heretofore  recog- 
nized, the  rules  of  pleading  and  of  evidence  should  be  made 
to  harmonize  therewith.  The  former  relates  to  the  essence  of 
human  rights,  the  latter  to  the  forms  and  means  of  securing 
them. 

5'  Malaun  v.  Ammon,  1  Grant's  Gas.,  126;  Hertzogg  v.  Hertzogg,  34  Pa. 
St.,  418. 

^  Dumars  v.  Miller,  34  Pa.  St.,  323.  See,  also,  Bowser,  v.  Cessna,  62  Pa. 
St.,  148;  Baldwin  v.  Munn,  2  Wend.,  399;  Peters  v.  McKeon,  4  Den.,  546; 
Fletcher  V.  Button,  6  Barb.,  646;  Hiner  v.  Richter,  51  111.,  229;  Thompson 
V.  Guthrie.  9  Leigh.,  101;  Allen  v.  Anderson,  2  Bibb.  (Ky.),  415;  Hanley  v. 
Chambers,  1  Little,  (Ky.),  358;  Stewart  v.  Noble,  1  G.  Greene,  (la.),  26. 


404  THE  LAW  OF  DAMAGES. 

Where  Vendor  Acts  in  Bad  Faith— Rule. 

§  485.  The  current  of  English  decisions  on  the  question 
under  consideration  clearly  recognizes  the  distinction  in  the 
measure  of  damages,  based  on  the  fact  of  good  or  bad  faith  in 
the  grantor,  as  we  shall  hereafter  notice.  The  tendency  of 
the  decisions,  both  in  England  and  in  this  country,  where  the 
vendor  is  guilty  of  fraud  or  acts  in  in  bad  faith,  is  to  hold 
him  to  a  more  extended  liability,  in  case  of  a  breach  of  con- 
tract to  convey;  and  the  damages  in  such  a  case  may  embrace 
not  only  the  amount  of  consideration  paid,  but  the  losses  of 
a  good  bargain  and  such  losses  even  as  were  contemplated  by 
the  parties,  at  the  time  of  the  contract,  as  the  probable  result 
of  a  breach. 

Thus,  in  Walher  v.  Moore,  supra,  Baylet,  J.,  in  his 
remarks,  distinguished  it  from  the  case  oi  Hopkins  v.  Oraze- 
hrook^'^  on  the  ground  that  in  the  latter  case  the  plaintiff  had 
sold,  as  his  own,  the  property  which  was  not  his,  and  the  court 
was  of  the  opinion  that  the  defendant  was  in  fault  by  repre- 
senting himself  to  be  the  owner  of  the  proj^erty  sold  by  him, 
and  he  remarks  as  follows:  "  If  there  was  mala  fides  in  the 
original  vendor,  I  am  not  prepared  to  say  that  the  purchaser 
might  not  recover  the  profit  which  would  have  arisen  from  the 
resale."  And  in  the  same  case.  Park,  J.,  said:  "As  there 
was  no  fraud,  negligence  in  preparing  the  abstract  is  the  only 
thing  that  can  be  imputed  to  the  defendant,  and  the  plaintiff 
by  ordinary  care  might  have  avoided  the  loss  that  has  arisen 
from  negligence."  °^ 

§  486 .  In  Buckley  v.  Dawson,  supra,  the  Lord  Chief 
Justice  remarked:  "The  whole  matter  was  honafide,  and  no 
issue  was  sent  to  the  jury,  or  required  to  be  sent,  as  to  fraud." 
And  the  other  judges  concurred,  as  there  was  no  fraud  impu- 
ted to  the  defendant.  This  seems  clearly  to  imply  that  the 
motives  of  the  vendor  will  affect  the  measure  of  damages. 

9-6B.  &C.,  31.    See,  j90s^  §  492. 

93  See,  also,  Fyrer  v.  King,  2  C.  &  K.  (N.  P.),  149. 


COYENANTS— EEAL  ESTATE.  405 

Where  Vendor  Acts  in  Bad  Faith— Rule. 

And  whatever  may  be  the  doctrine  elsewhere,  this  element  has 
generally  been  reeoguized  in  this  country  as  affecting  the 
claim  for  damages." 

§  487.  The  rule  of  damages  in  such  cases,  at  least  where 
there  is  fraud  or  bad  faith  on  the  part  of  the  vendor,  is  analo- 
gous to  that  of  a  breach  of  contract  for  the  sale  of  personal 
property,  and  the  vendee  may  recover  all  such  consequential 
damages  as  directly  result  from  a  breach  of  the  contract."^ 
Thus,  in  Baldwin  v.  Munn^  sujpra,  Sutherland,  J.,  said :  "  If 
the  vendor  acts  in  bad  faith  and  refuses  to  convey  because  the 
property  has  increased  in  value,  and  with  the  view  of  putting 
the  enhanced  value  in  his  own  pocket,  it  becomes  a  case  of 
fraud,  and  the  plaintiff  would  clearly  be  entitled,  either  to 
compel  a  specific  performance  in  equity,  or  to  recover  by  way 
of  damages  the  difference  between  the  contract  price  and  the 
enhanced  value  when  the  conveyance  should  have  been 
made." '" 

§  488.  So  in  Iowa,  the  measure  of  damages  in  such  cases 
is  held  to  depend  upon  the  cause  of  the  failure.  If  the  vendor 
has  been  prevented  from  performing  by  unforeseen  causes, 
which  he  could  not  control,  and  no  part  of  the  consideration 
has  been  paid,  the  vendee  can  only  recov^er  nominal  damages. 
If  the  consideration,  or  any  part,  has  been  paid  he  may  recover 
that  with  interest  only.      But  if  the  vendor  is  in  fault  and  did 

94  McNair  v.  Compton,  35  Pa.  St.,  23;  Hall  v.  York,  22  Tex.,  641;  Whee- 
ler V.  Styles,  28  Id.,  240;  Hale  v.  New  Orleans,  18  La.,  321. 

95  Lock  V.  Furze,  34  L.  J.  (N.  S.),  C.  P.,  201;  19  C.  B.  (N.  S.),  96;  1  L. 
R.  (C.  P.),  441;  Engle  v.  Fitch,  9  B.  &  S.,  85;  L.  R.,  3  Q.  B.,  314;  10  B.  & 
S.  (Exch.),  738;  L.  R.  Q.  B.,  659;  in  which  the  doctrine  of  Hadley  v.  Bax- 
endale  was  recognized.  If  the  consideration  has  been  paid  the  purchaser 
should  be  allowed  the  value  of  the  property  at  the  time  the  conveyance 
should  have  been  made.  Brinkerholf  v.  Phelps,  24  Barb.,  100;  Cox  v. 
Henry,  32  Pa.  St.,  18;  Burr  v.  Todd,  41  Id.,  206;  Barbor  v.  Nichols,  3  R. 
I.,  187;  Shaw  V.  Wilkins,  8  Humph.  (Tenn.),  647;  Pringle  v.  Spalding,  53 
Barb.  (N.  Y.),  17. 

96  2  Wend.,  399.  See,  also,  the  same  doctrine  in  Peters  v.  McKeon,  4 
Den.,  546,  supra;  and  Fletcher  v.  Button,  6  Barb.,  646,  supra. 


406  THE  LAW  OF  DAMAGES. 

Where  Vendor  Acts  in  Bad  Faith— Rule, 

know,  or  should  have  known,  that  he  could  not  comply  with 
the  contract;  or  has  the  title  and  refuses  to  convey;  or  had 
the  title  and  has  disposed  of  it,  and  thereby  disabled  himself 
from  conveying  tlie  same;  or  at  the  time  of  making  tlie  con- 
tract knew  that  he  had  no  title;  or  where  the  inability  to 
convey  arises  in  any  manner  from  the  fraud  of  the  vendor; 
the  vendee  may  in  any  of  these  cases  recover  compensation 
for  any  actual  loss  arising  from  the  breach  of  the  contract  to 
convey,  including  the  increased  value  of  the  hind  at  the  time 
the  contract  should  have  been  performed." 

§  489.  In  Hophins  v.  Lee^  tlie  Supreme  Court  of  the 
United  States,  held  the  same  doctrine.  Tlie  court  said:  "  The 
rule  is  settled  in  this  court  that,  in  an  action  by  tlie  vendee  for 
a  breach  of  contract  on  the  part  of  the  vendor  for  not  deliv- 
ering the  article,  the  measure  of  damages  is  its  price  at  the 
time  of  the  breach.  The  price  being  settled  by  the  contract, 
which  is  generally  the  case,  makes  no  difference,  nor  ought  it 
to  make  any;  otherwise  the  vendor,  if  the  article  has  risen  in 
value,  would  always  have  it  in  his  power  to  discharge  himself 
from  his  contract,  and  put  the  enhanced  value  in  his  own 
pocket;  nor  can  it  make  any  difference  in  principle  whether 
the  contract  be  for  real  or  personal  property,  if  the  lands,  as 
is  the  case  here,  have  not  been  improved  or  built  on.  In  both 
cases  the  vendee  is  entitled  to  have  the  thino;  ag-reed  for  at  the 
contract  price,  and  to  sell  it  himself  at  its  increased  value.  If 
it  be  withheld,  the  owner  ought  to  make  good  to  him  the 
difference.'"* 

§  490.  The  distinction  made  between  good  and  bad  faith 
in  the  grantor  or  covenantor,  in  such  cases,  has  been  recently 

97  Foley  V.  McKegan,  4  la.,  1;  Sweem  v.  Steele,  5  Id.,  352.  See,  also, 
Wilson  V.  Spencer,  11  Leig'li.  (Va.),  261;  Allard  v.  Anderson,  2  Bibb.  (Ky.), 
41-5;  Davis  v.  Lewis,  4  Id.,  456;  Locke  v.  Taylor,  2  Tenn.,  50;  Stephenson  v^ 
Harrison,  3  Litt.,  170;  Bush  v.  Cole,  23  N.  Y.,  261;  Pring-lev.  Spalding,  53 
Barb.,  17;  Griswold  v.  Sabin,  51  N.  H.,  167;  Russell  v.  Copeland,  30  Me.,  332. 

58  6  Wheat.  (U.  S.),  109. 


COYENANTS— EEAL  ESTATE.  407 

"Where  Vendor  Acts  in  Bad  Faith— Rule. 

recognized  in  Missouri,  in  the  case  of  Kirkyatrick  v.  Down- 
ing. Tlie  learned  Justice  Wagner,  after  a  full  review  of  the 
authorities  bearing  on  the  question,  maintains  the  general  rule, 
that  where  the  failure  or  Inability  to  convey  is  owing  to  the 
fault  of  the  vendor,  the  vendee  is  entitled  to  the  value  of  the 
property  at  the  time  of  the  breach,  provided  the  consideration 
has  been  paid;  and  that  even  where  the  consideration  has  not 
been  paid  or  tendered,  if  the  vendor  has  placed  it  out  of  his 
power  to  convey,  the  vendee  may  recover  the  difference  between 
the  contract  price  and  any  increase  in  value  of  the  land  beyond 
such  price. 

He  remarks:  "  The  rule  must  be  reciprocal ;  where  the  prop- 
erty has  enhanced  in  value  the  purchaser  gets  the  benefit  of 
the  enhancement.  So,  where  a  depression  has  taken  place, 
he  must  submit  to  a  corresponding  loss.  In  both  cases  he 
obtains  the  true  measure  of  damages,  full  compensation  for  the 
loss  sustained.  Where  there  is  no  evidence  given  showing 
any  change  in  the  situation,  the  consideration  paid,  and  inter- 
est, will  be  taken  as  the  correct  value  of  the  land;  but  where 
there  is  evidence  given  showing  a  change  in  the  value  of  the 
land,  the  value  at  the  time  the  breach  occurred  and  when  the 
conveyance  ought  to  be  made,  will  furnish  the  standard  of 
damages.  This  is  fair  and  just  for  both  parties,  as  they  obtain 
j)recisely  what  they  are  entitled  to,  and  the  basis  is  predicated 
on  actual  loss,  the  full  and  actual  consideration."  °" 

§  492.  This  doctrine  seems  now  to  be  generally  sustained 
in  England.  Thus,  M-here  a  person  who  had  contracted  for 
the  purchase  of  an  estate  but  had  not  obtained  a  conveyance, 
put  up  the  estate  for  sale  in  lots  by  auction,  and  engaged  to 
make  a  good  title  by  a  certain  day,  which  he  was  unable  to  do 
as  his  vendor  never  made  any  conveyance  to  him,  it  was  held 
that  a  purchaser  of  lots  at  the  auction  sale  might,  in  an  action 
for  not  making  a  good  title,  recover  not  only  the  expenses 

9958  Mo.,  32 


408  THE  LAW  OF  DAMAGES. 

Where  "Vendor  Acts  in  Bad  Faith— Rule. 

which  he  had  incurred,  but  also  damages  for  the  loss  which  he 
had  sustained  bj  not  having  the  contract  carried  into  effect, 
including  the  loss  of  a  good  bargain.'"  As  it  was  admitted  in 
this  case  that  the  defendant  acted  in  good  faith,  it  seems 
difficult  to  reconcile  the  case  with  some  other  English  decis- 
ions." 

§  493 .  This  decision  was  followed,  in  a  subsequent  case 
where  the  defendant  agreed  to  grant  and  deliver  to  the  plain- 
tiff a  lease  of  certain  premises  for  the  term  of  twenty-one 
years,  and  there  was  a  breach  of  the  contract  on  the  part  of 
the  lessor.  In  an  action  for  damages  for  the  breach,  the 
defendant,  at  nisi  prias^  offered  evidence  to  show  that  the 
plaintiff,  when  he  entered  into  the  agreement,  had  full  knowl- 
edge of  the  defendant's  incapacity  to  grant  the  lease,  but  the 
trial  judge  ruled  that  such  evidence  was  inadmissible.  On 
the  argument  for  a  new  trial  in  the  Exchequer,  Parke,  B., 
said:  "The  defendant  contracted  to  grant  a  good  and  valid 
lease,  and  the  learned  judge  was  right  in  rejecting  evidence 
which  would  go  to  alter  the  contract  admitted  by  the  j)lea. 
The  next  question  is,  what  damages  is  the  plaintiff  entitled  to 
recover?  The  rule  of  the  common  law  is  that  where  a  party 
sustains  a  loss  by  reason  of  a  breach  of  contract,  he  is,  so  far 
as  money  can  do  it,  to  be  placed  in  the  same  situation,  with 
respect  to  damages  as  if  the  contract  had  been  performed. 
The  case  aiFloureauv.  Thornhill^(\y\?i\\^Q(i  that  rule  of  the 
common  law.  It  was  there  held  that  contracts  for  the  sale  of 
real  estate  are  merely  on  condition  that  the  vendor  has  a  good 
title;  so  that  when  a  person  contracts  to  sell  real  property, 
there  is  an  implied  understanding  that  if  he  fails  to  make  a 
good  title,  the  only  damages  recoverable  are  the  expenses 
which  the  vendee  may  be  put  to  in  investigating  the  title. 
The  present  case  comes  within  the  rule  of  the  common  law 

'°  Hopkins  v.  Grazebrook,  6  B.  &  C,  31  (1826). 
"  See  Walker  v.  Moore,  ante,  §  485. 


COVENANTS— REAL  ESTATE.  409 

Principles  in  Hadley  v.  Baxendale  Applied. 

and  I  am  unable  to  distinguisli  it  from  Hojpkins  v.   Gmze- 

§  494.  The  doctrine  that  a  party  selling  real  estate,  where 
he  has  no  title,  shall  be  responsible  for  all  losses  sustained  by 
the  vendee  in  consequence  of  a  failure  to  convey  a  good  title, 
seems  to  be  here  maintained,  and  this,  as  we  have  seen,  is  in 
full  accord  with  the  recent  American  decisions.  The  last  two 
English  cases  seem  to  ignore  the  doctrine  in  Floureau  v. 
Thornhill,  as  a  doctrine  of  the  common  law,  and  to  hold  that 
that  was  an  exception  to  the  general  rule.  The  tendency  of 
recent  decisions  is  to  return  to  the  common  law  doctrine,  and 
while  respect  is  still  paid  to  the  exceptional  doctrine  in  the  case 
referred  to,  the  courts  seem  ready  to  infer  fraud  and  want  of 
good  faith  in  the  vendor,  where  there  is  a  failure  of  title,  for 
almost  any  cause.  It  is  evident  that  cases  have  been  quite 
differently  decided  where  the  facts  were  almost  identical. 
But  in  the  progress  of  legal  science,  the  infirmities  of  human 
nature,  and  human  institutions  intended  to  secure  justice,  will 
thus  be  manifested.  A  contract  to  sell  real  estate  has  fre- 
quently, as  we  have  seen,  been  treated  per  se  fraudulent,  or 
in  bad  faith,  where  the  vendor  had  no  title  at  the  time. 

§  495.  The  Principles  in  Hadley  v.  Baxendale  Applied. 

— There  is  another  class  of  cases  that  seem  to  fall  within  the 
principle  in  Hadley  v.  Baxendale^  and  where  the  grantor,  in 
case  of  his  breach  of  the  contract  to  convey,  may  be  liable  for 
such  losses  as  are  the  direct  and  natural  result  of  the  breach, 
or  such  as  the  parties  contemplated  or  had  reason  to  contem- 
plate as  a  result  of  a  breach  of  the  same.  Thus,  where  after 
part  performance  by  the  vendee  of  a  contract  for  the  convey- 
ance of  real  estate,  the  vendor  wrongfully  declared  it  for- 
feited, and  prevented  the  vendee  from  fully  complying  with 
the  contract,  and  improvements  had  in  the  mean  time  been 

«  Robinson  v.  Harman,  1  Exch.  (W.  H.  &  G.).  850,  (1848).  In  the 
opinion  of  Parke,  B.,  in  this  case,  Alderson,  B.  and  Piatt,  B.,  concurred. 


410  THE  LAW  OF  DAMAGES. 


Principles  in  Hadley  v.  Baxendale  Applied. 


made  bj  the  vendee  which  were  contemplated  by  the  parties 
at  the  time  of  making  the  contract;  in  an  action  by  the  vendee 
to  recover  damages  therefor,  it  was  held,  that  the  measure  of 
damao-es  for  such  breach  was  the  difference  between  the  unpaid 
purchase  money  and  the  value  of  the  premises  at  the  time  of 
the  breach.  This  would,  of  course,  give  the  vendee  the  value 
of  the  improvements  made  by  him,  and  the  benefit  of  the 
losses  sustained  by  the  vendor's  breach,  which  were  contem- 
plated, bringing  it  within  the  principle  in  Hadley  v.  Baxen- 
dale, which  is  so  often  applicable,  and  which  would,  if  applied 
more  frequently  to  the  adjustment  of  controversies  between 
vendor  and  vendee,  promote  justice  and  equity." 

§  490.  The  justice  of  the  application  of  this  doctrine  in 
case  of  a  breach  of  contract  to  convey,  has  been  recognized  by 
able  writers  on  this  subject.  The  courts,  however,  have  gen- 
erally favored  the  rule,  applied  in  case  of  a  breach  of  the 
covenants  of  title  in  deeds,  to  such  cases,  which  we  have 
already  considered.  But  the  injustice  of  this  limitation  of 
damages,  in  many  cases,  is  apparent.  Mr.  Mayne,  in  his  val- 
uable treatise  on  Damages,  after  considering  the  reasons  for 
the  general  rule  of  damages  for  breaches  of  the  covenants  of  a 
deed  of  conveyance,  remarks:  "But  the  same  obvious  equity 
seems  by  no  means  to  exist  when  the  additional  value  arises 
from  the  outlay  of  the  plaintiff's  own  capital  upon  the  land. 
!N"o  doubt  cases  might  be  put  in  which  a  claim  for  damages 
on  this  account  would  be  clearly  inadmissible,  as  for  instance 
if  a  person  bought  a  moor  or  a  mountain  for  shooting  over, 
and  chose  to  reclaim  the  one,  or  build  a  mansion  with  pleas- 
ure grounds  upon  the  other.  But  suppose  he  purchased 
building  ground  at  so  much  per  foot  in  London  or  Manchester, 
for  the  express  object  of  building,  ought  he  not  to  be  repaid 
for  money  laid  out  in  this  way,  the  benefit  of  which  is  seized 
by  strangers?     In  this  case  the  damage  incurred  is  the  direct 

'3  Case  V.  Wolcott,  33  IncL,  5,  (1870). 


COYENANTS— REAL  ESTATE.  411 

Principles  in  Hadley  v.  Baxendale  Applied. 

result  of  tlie  breach  of  contract,  and  a  result  which  must  liave 
been  contemplated  by  the  party  entering  into  the  covenant. 
Probably  this  will  be  found  to  be  the  true  ground  of  distinc- 
tion, and  that  every  case  must  be  decided  upon  its  own  merits 
according  as  the  improvements  were  the  fair  consequence  of 
the  contract  of  sale  or  not.'^ 

§497.  Mr.  Kawle,  in  his  valuable  work  on  Covenants, 
recognizes  the  necessity  of  such  a  doctrine  to  secure  justice  in 
certain  cases.  He  remarks:  "In  certain  parts  of  the  United 
States  unimproved  land  is  frequently  conveyed  ^to  a  purchaser 
in  fee,  reserving  to  the  vendor,  as  the  entire  consideration,  an 
annual  fee,  farm  or  ground  rent,  which  represents  the  vahie  of 
the  land,  the  purchaser  covenanting  that  he  will,  for  the  pur- 
pose of  securing  to  the  vendor  the  rent  so  reserved,  erect  cer- 
tain stipulated  imj)rovements.  In  this  class  of  cases  the 
improvements  being  directly  within  the  meaning  of  the  par- 
ties, and  one  of  the  inducements  to  the  contract,  it  would 
seem  "that  if  the  lands  thus  improved  were  subsequently  lost 
by  reason  of  a  defect  in  the  title,  or  incumbrances  created  by 
the  vendor,  the  damages  should  not  be  limited  by  the  conside- 
ration, but  might  with  propriety  be  increased  by  the  value  of 
the  improvements  thus  made,  and  if  there  could  be  any  doubt 
as  to  the  liability  of  the  vendor  to  this  extent,  in  case  the 
defect  or  incumbrances  were  not  created  by  himself,  although 
within  the  covenants  he  might  have  given,  there  would 
seem  to  be  none  where  the  loss  was  the  consequence  of  his 
own  act,'"^ 

§  498.  But  the  application  of  this  doctrine  was  denied  in 
England,  in  a  case  where  the  facts  were  as  follows:  A.  entered 
into  possession  of  premises  under  an  agreement  with  B.,  under 
which  he  was  to  hold  them  as  tenant  for  two  years  at  the 
yearly  rent  of  £50,  with  liberty  to  A.  to  make,  at  his  own 

'4  Mayne  on  Dam.,  99. 

'sRawle  on  Gov.,  257.    See,  also,  Dai-t.  on  Vend.  (4  ed.),  726. 


412  THE  LAW  OF  DAMAGES. 

Delay  in  Performance— Partial  Breach. 

expense,  such  alterations  and  additions  to  tlie  premises  as  he 
might  think  proper,  the  same  being  improvements,  and  A.  to 
have  the  option  of  purchasing  the  premises  at  any  time  during 
the  two  3^ears  for  £600,  it  being  understood  between  the  par- 
ties that  JB.  was  possessed  of  the  premises  for  his  own  life  and 
the  life  of  C,  and  of  the  survivor  of  them.  A.  during  the  term 
having  elected  to  take  the  conveyance  tendered  the  considera- 
tion, but  B.  had  not  the  precise  interest  mentioned  in  the 
agreement.  In  an  action  by  A.  for  the  breach  of  the  agree- 
ment, and  compensation  for  the  money  expended  by  him  in 
improvements,  it  was  held,  that  he  was  only  entitled  to  recover 
the  value  of  the  proposed  lease,  and  not  the  value  of  the 
improvements."  This  decision  would  appear  irreconcilable 
with  other  cases  we  have  noticed,  and  the  current  of  authority 
in  similar  cases. 

§  499.  Delay  in  the  Performance.— Where  there  is  a 
delay  of  performance  of  a  contract  for  the  conveyance  of 
real  estate,  by  reason  of  the  vendor's  inability  to  perform  on 
his  part,  the  general  rule  is  that  the  vendee  may  recover  the 
amount  of  loss  sustained  by  the  depreciation  during  the 
delay." 

§  500.  Partial  Breach. — In  an  action  by  a  vendor  on  a 
bond  for  a  sum  of  money  which  was  a  part  of  the  considera- 
tion of  the  conveyance  of  a  tract  of  land,  and  the  defense 
was  for  fraudulently  representing  that  six  acres  of  the  tract 
sold  was  valuable  wood  land,  Tilghman,  C.  J".,  in  delivering  the 
opinion  of  the  Supreme  Court  of  Pennsylvania  said :  "  In 
cases  of  fraud  the  jury  are  not  bound,  in  assessing  the  dama- 
ges, by  the  price  which  has  been  stipulated  between  the  par- 
ties. In  the  case  before  us,  therefore,  the  jury  should  have 
been  instructed  that  if  there  was  fraud  they  might  deduct 
from  the  defendant's  bond  the  amount  of  the  injury  sustained 

'6  Worthington  v.  Warrington,  8  Man.  Gr.  &  S.,  134. 
'7  Mallen  v.  Bloomer,  11  la.,  360. 


COYEKANTS— REAL  ESTATE.  413 

Eule  in  Special  Cases. 

by  the  loss  of  the  six  acres  of  wood  land.  It  is  evident  that 
this  loss  might  be  much  more  than  the  average  price  of  the 
whole  land.'"' 

§501.  Rule  in  Special  Cases.— So,  it  has  been  held, 
that  as  against  a  fraudulent  grantor,  damages  may  be  given 
for  all  the  expenses  in  which  the  fraudulent  acts  of  the  defend- 
ant involved  the  plaintiff;  and  that  he  is  entitled  to  have 
the  loss  of  his  bargain  made  good."  And  where  the  lands 
are  to  be  conveyed  in  payment  of  services  the  measure  of 
damages,  in  case  of  a  breach,  is  the  value  of  the  services  and 
not  the  land.  So  in  Iowa,  in  an  action  upon  a  bond  executed 
by  the  defendant  for  the  conveyance  of  real  estate,  where  the 
plaintiff  had  paid  part  of  the  purchase  money  and  entei-ed 
upon  the  premises,  and  the  title  of  the  defendant  proving 
defective  the  plaintiff  purchased  the  outstanding  paramount 
title,  the  measure  of  damages  was  held  to  be  the  amount  paid 
by  the  plaintiff  for  the  outstanding  title,  with  interest.^" 

§  502.  And  where  one  sells  a  tract  of  land  and  fraudu- 
lentlj'  conveys  another,  the  purchaser's  measure  of  damage  is 
the  difference  in  the  vahie  between  the  two  parcels.'^'  And 
in  Pennsylvania,  it  has  been  held,  that  the  jury  may  include 
in  their  verdict  the  plaintiff's  necessary  expenses,  such  as 
those  incurred  in  investigating  the  title,  in  addition  to  the 
value  of  the  premises  which  the  defendant  has  failed  to  con- 
vey.^'' So  in  Michigan,  it  was  held  under  special  circum- 
stances that  for  a  willful  breach  of  a  covenant  to  convey  land, 
the  measure  of  damages  was  the  difference  between  the  actual 
value  of  the  land  at  the  time  of  the  breach,  and  the   sum 

•8  King  V.  Pyle,  8  Serg.  &  R.,  166. 

'9  McNair  v.  Compton,  35  Pa.  St.,  2-3;  Meason  v.  Kaine,  67  Pa.  St.,  126. 

=°  Baker  v.  Corbett,  28  la..  317,  (1869).  The  measure  of  damages  for 
refusal  to  convey  land  exchanged,  is  the  value  of  the  land  agreed  to  be 
conveyed,  Devin  v.  Himer,  29  la.,  297. 

"  Halm  v.  Cummings,  3  la.,  583. 

«  Lee  V.  Dean,  3  Whart.  (Pa.),  316. 


414  THE  LAW  OF  DAMAGES. 


llule  in  Special  Cases. 


agreed  to  be  paid,  less  tlie  amount  of  consideration  received 
for  the  waiver  of  the  right  to  a  specific  performance."  But 
in  the  same  state,  it  was  held,  that  while  the  ordinary  measure 
of  damages  for  breaking  the  covenant  to  sell  real  estate,  is  the 
consideration  money  and  interest,  with  perhaps  costs  for 
investigating  the  title,  yet  where  the  vendor  contracts  to 
sell,  knowing  he  cannot  make  a  title,  or  having  a  title  refuses 
to  convey,  or  disables  himself  from  conveying,  or  otherwise 
acts  in  bad  faith,  the  rule  of  damage  is  the  same  as  in  regard 
to  personal  property,  and  the  purchaser  may  recover  the  value 
of  the  land  at  the  time  of  the  breacli."' 

So  wdiere  a  trustee  was  authorized  to  sell  land  only  on  the 
written  consent  of  the  cestui  que  trust,  who  was  a  married 
woman;  and  it  appeared  he  was  told  by  her  that  he  need  not 
consult  her  about  the  sale  of  any  of  the  lands  belonging  to 
the  trust  estate,  but  to  confer  with  her  husband  in  reference 
thereto,  and   that  she  would  do  what  they  should  agi-ee  upon 
in  reference  to  the  sale  of  the  same;  and  the  defendant,  with 
the  concurrence  of  the  husband  made  an  agreement  in  good 
faith  for  a  sale    to  the  plaintifif;  and   it  further  appeared  she 
had  in  many  previous  instances  assented  to  conveyances  of 
parcels  of  the  land  held  in  trust,  thus  contracted,  and  had  in 
no  instance  objected  to  what  her  husband  had  done,  in  making 
sale  of  the  lands.     On  appeal,  Justice  Gould  said:  "The  only 
point  to  be  decided  is,  what  is  the  rule  of  damages  in  a  suit 
for  the  breach  of  a  contract  to  convey  lands.     Is  the  plaintiff 
in  such  a  suit  to  recover  his  actual  loss  (the  value  of  the  land 
agreed   to   be   conveyed);  or   is  lie  to  be  confined  to  getting 
back  the  price  he  paid,  and  interest?     Upon  principle,  there 
would   seem    to   be   no   question    about  it;  for  mere  justice 
requires  that  his  recovery  should  be  equal  to  his  loss.     That 
there  is  any  doubt  on  the  subject,  is  owing  to  the  uniform 

»3  Allen  V.  Atkinson,  21  Mich.,  351. 
«♦  Hammond  V.  Hannin,  21  Mich.,  374. 


COYENANTS— EEAL  ESTATE.  415 

Rule  in  Special  Cases. 

current  of  decisions  in  this  state,  which  have  fixed  that  rule  of 
damages  in  suits  on  the  covenants  of  seizin,  warranty,  etc.,  in 
a  deed,  and  to  the  general,  though  not  uniform  transferring  of 
that  rule  to  suits  where  no  deed  has  been  given,  but  the  con- 
tract for  giving  one,  has  been  broken  by  reason  of  inability, 
or  refusal  to  convey.  *  *  *  'j^j^g  cases 

cited  for  the  defendant,  (2  "Wend.,  399,  and  4  Denio,  546),  are 
hardly  parallel  with  this  case.  Those  are  cases  where,  by 
mistake  or  misfortune,  the  party  was  unable  to  keep  his  con- 
tract. In  this  case  he  knew  his  exact  position,  and  ventured 
to  make  this  contract;  and  I  think  he  must  be  responsible  for 
the  damage  sustained  by  a  breach  of  this  contract.  *  *  ■» 
Phelps,  either  made  a  contract,  which  he  knew  he  had  no 
right  to  make,  or  he  arbitrarily  refused  to  fulfill,  when  he 
found  he  could  get  more  than  twice  the  price  for  his  land 
that  the  plaintiff  had  agreed  to  pay.  And  the  latter  is,  neither 
in  morals  nor  law,  any  better  reason  than  the  former.  The  rule 
of  damages,  as  against  him,  should  be  the  value  of  the  land 
at  the  time  of  the  breach,  and  interest  since  then.'"^ 

§  503.  This  doctrine  of  the  court  would  hold  the  husband 
responsible  for  the  loss  of  a  good  bargain  on  a  breach  of  a 
contract  to  sell,  the  wife  refusing  to  join  in  the  conveyance, 
when  he  knew,  of  course,  that  his  wife  must  join  in  a  convey- 
ance to  make  a  good  title.  And  this  has  been  so  settled  in 
New  Jersey,  in  a  recent  case,  where  a  vendor  agreed  to  furnish  a 
title  in  fee  simple,  free  from  incumbrances,  and  his  wife  refused 
to  join  in  the  deed;  the  court  held  that  as  the  vendor  knew, 
at  the  time  of  the  making  of  the  contract,  that  it  would  not 
be  a  lawful  transfer  of  the  title  unless  the  wife  joined  in 
the  conveyance,  the  purchaser  was  held  entitled  to  recover 
substantial  damages  for  the  loss  of  his  bargain,  and  to  com- 

«  Brinkerhoff  v.  Phelps,  24  Barb.,  100.    Affirmed  at  Gen.  Term,  43  Barb., 
469.    See,  also,  Springle  v.  Spalding,  53  Barb.,  17. 


416  THE  LAW  OF  DAMAGES. 

Eule  In  Special  Cases. 

plete  indemnity.'*  In  Pennsylvania  it  was  recentlj^  held, 
in  an  action  for  the  breach  of  a  parol  contract  to  convey 
land,  that  the  plaintiff  should  recover  the  consideration  and 
compensation  for  improvements  made  in  reliance  on  the  con- 
tract, less  the  reasonable  rental  for  the  premises,  unless  there 
was  fraud  on  the  part  of  the  vendor;  and  that  the  failure  to 
convey  it  was  not  such  a  fraud,  although  the  vendor  had 
power  to  convey,"  If  the  case  of  Drake  v.  Baker  is  to  be 
considered  as  good  authority,  it  may  be  considered  settled 
that,  although  the  general  rule  is  that  the  vendor  is  pro- 
tected from  enhanced  damages,  where  he  acts  in  good  faith, 
no  amount  of  good  faith  will  protect  him  in  case  of  a  breach, 
where  he  contracts  to  convey  real  estate  and  has  not,  in 
prcesenti,  the  power  to  give  a  good  title. 

§  504.  We  are  inclined  to  think  the  principle  of  the  above 
case  is  in  accord  with  recent  decisions  in  this  country,  if  not 
in  England,  and  that  the  distinction  heretofore  recognized, 
between  contracts  made  in  reference  to  real  estate  and  per- 
sonal property,  is  being  disregarded.  There  would  seem  to 
be  no  reason  why  the  same  rules  of  law  should  not  be  applica- 
ble to  each,  and  the  tendencies  of  recent  decisions  is  to  place 
them  on  the  same  grounds  as  to  the  measure  of  damages. 

§  505-  In  the  light  of  the  foregoing  decisions,  where  the 
vendor  did  not  at  the  time  of  the  contract  have  it  in  his  power 
to  make  a  complete  title,  and  contracted  to  give  such  a  title, 
the  vendee  is  entitled,  as  a  proper  element  of  his  damages,  to 
the  difference  between  the  value  of  the  land  at  the  time  of  the 
breach  and  the  contract  price,  notwithstanding  the  good  faith 
of  the  vendor  in  making  the  contract  or  endeavoring  to  com- 
pl}'-  therewith.  In  reference  to  this  result,  the  editor  of  a 
recent  edition  of  Mr.  Sedgwick's  Treatise  on  the  Measure  of 

'«  Drake  v.  Baker,  34  N.  J.,  (5  Vroom),  358;  PumpeUy  v.  Phelps,  40  N. 
Y.,  60. 
'7  Harris  v.  Harris,  70  Pa.  St.,  170. 


COVEN'AlSrTS— REAL  ESTATE.  417 

Eule  in  Special  Cases. 

Damages,  remarks:  "By  the  rule  therefore,  as  it  now  exists 
in  'New  York,  we  have  this  remarkable  anomaly:  If  a  party 
having  made  a  contract  to  convey  real  estate  knowing  that  he 
has  no  title  to  it  at  the  time,  but  not  doubting  his  ability  to 
obtain  such  a  title,  discovers  that  he  cannot  do  so,  and  on 
making  the  discovery  promptly  apprises  the  other  party  of 
his  inability  to  carry  out  the  contract,  and  accordingly  does 
not  execute  it,  intending  to  do  as  little  harm  as  possible,  he 
will  be  obliged  to  pay  for  the  loss  of  the  other's  bargain.  But 
if  he  proceed  to  execute  and  deliver  the  conveyance,  covenant- 
ing that  he  has  a  good  title  while  knowing  lie  has  not  one  and 
cannot  make  one,  he  will  be  liable  on  this  solenm  covenant 
for  the  consideration  money  and  interest  only."  '* 

But  the  purchaser  might  in  the  latter  case,  refuse  to  receive 
the  conveyance  and  retain  his  right  to  the  larger  damages. 
Besides,  this  anomaly  does  not  exist  where  the  larger  rule  of 
damages  prevails  on  a  breach  of  the  covenant  of  warrant}'; 
namely,  the  value  of  the  lands  at  the  time  of  the  breach. 

§  506.  The  most  reasonable  way  to  harmonize  the  rule,  in 
all  cases,  would  be  to  make  the  rule  of  damages  on  the  breach 
of  a  covenant  or  agreement  in  reference  to  a  sale  of  real  estate 
the  same  as  on  a  sale  of  personal  property;  and  the  importance 
of  this  uniformity  as  well  as  its  general  justice  and  harmony 
with  the  principles  of  the  law,  influenced  our  opinion  hereto- 
fore expressed  in  favor  of  the  extended  rule  of  damages  on 
breaches  of  covenants  relating  to  real  estate.  This  would  of 
course  exclude  any  consideration  of  the  question  of  good  or 
bad  ftiith,  the  same  as  in  actions  on  contracts  relating  to  per- 
sonal property.  The  objection,  however,  urged  against 
motives,  as  affecting  the  amount  of  damages  on  a  breach  of 
contract,  refers  to  mere  technicalities  relating  to  the  forms  ot 
actions,  and  has  less  force,  if  any,  where  these  forms  have 
been  abolished.     The  objection  relates  more  to  form  than  sub- 


'8  Sedg.  on  Dam.,  6tli  ed.,  page  214,  note. 

27 


418  THE  LAW  OF  DAMAGES. 

Where  Party  Undertakes  to  Secure  Title,  etc.— Where  Vendee  Fails,  etc. 

stance;  and,  where  these  forms  no  longer  remain,  there  could 
be  no  objection  to  setting  forth  in  the  pleadings  the  fraudu- 
lent act  relating  to  the  non -performance,  as  well  as  to  the 
makino:  of  the  contract,  nor  to  a  claim  for  a  deceit  therein 
as  well  as  for  damages  for  an  ordinary  breach;  and  proofs  to 
sustain  these  allegations,  or  either  of  them,  would  be  proper. 
This  is  common  in  the  pleadings  and  practice  in  Chan- 
cery." 

§  507.  Where  a  Party  Undertakes  to  Secure  Title 
from  another,  or  Wrongfully  assumes  to  act  as  Agent. 

— Where  a  party  undertook  to  secure  a  title  from  another  who 
refused  to  convey,  it  was  held  that  the  measure  of  damages 
was  the  value  of  the  land  at  the  time  the  party  for  whgm  the 
title  was  to  be  obtained  had  notice  that  the  conveyance  could 
not  be  procured."  And  where  a  party  assumes  to  act  as  agent 
for  the  owner  of  lands,  without  authority,  and  makes  a  con- 
tract as  agent  to  convey,  he  is  liable  to  the  vendee  for  the  loss 
sustained  thereby,  including  the  increased  value  of  the  land 
at  the  time  of  the  breach.^' 

§  508.  Where  the  Vendee  Fails.— The  general  rule  of 
damages  on  a  failure  of  the  vendee  to  take  the  property  pur- 
chased and  pay  for  the  same,  would  be  the  actual  loss  sustained 
by  the  vendor  thereby;  which  would  ordinarily  be  the  differ- 
ence between  the  contract  price  and  the  actual  value  of  the 
land  at  the  time  of  the  breach,  if  the  property  shall  have 
declined  in  value."'' 

'9  See  the  rule  of  damages  in  other  cases  on  breaches  of  contract  to  con- 
vey. Bryant  v.  Hambrick,  9  Geo..  133;  Cock  v.  Taylor,  2  Tenn.,  50; 
Nichols  V.  Freeman,  11  Ired.  (N.  C),  L.,  99;  Whiteside  v.  Jennings,  19 
Ala.,  784;  Cannell  v.  McLean,  6  Har.  &  J.,  297. 

^Galev.  Dean,  20  lU.,  320. 

«  Goodwin  v.  Francis,  5  L.  R.  (C.  P.),  295;  Spedding  v.  NeveU,  4  L.  R. 
(C.  P.).  212. 

^  Old  Colony  R.  Co.  v.  Evans,  6  Gray,  25;  Laird  v.  Pirn,  7  Mees.  k  W., 
474. 


COYEJSTANTS— EEAL  ESTATE.  419 

Damages  where  Grantor  Tenders  a  Deed— Eescission,  etc. 

§  509.    Damages  where  the  Grantor  Tenders  a  Deed, 

— And  where  a  deed  has  been  tendered  bj  the  grantor,  and 
refused,  and  the  price  has  not  been  paid,  the  weight  of  author- 
ity is  in  favor  of  a  rule  of  damages  allowing  the  vendor  to 
recover  the  price  agreed  to  be  paid,  with  interest." 

And,  in  Pennsylvania,  where  one  sold  land  for  $5,000, 
the  vendee  agreeing  that  the  seller  should  have  the  advance 
over  that  sum,  with  interest  and  taxes,  that  he  could  sell  the 
property  for  within  five  years,  and  on  a  certain  day  the  seller 
notified  the  purchaser  to  sell  the  property;  it  was  held,  that 
the  price  which  it  would  have  brought  on  that  day  in  advance 
of  the  purchase  price,  was  the  measure  of  damages,  and  not 
the  difi'erence  between  the  highest  price,  at  which  it  could 
liave  been  sold  within  the  five  years,  and  the  original  consider- 
ation.** 

§  510.  Rescission— When  Allowed- — A  purchaser  of 
real  estate  may  rescind  the  contract  and  recover  the  purchase 
money  advanced,  without  a  tender  of  tlie  balance  due  and  a 
demand  of  a  conveyance,  where  the  vendor,  by  his  own  act  or 
by  operation  of  law,  as  by  a  foreclosure  sale  under  a  mortgage 
executed  by  the  grantor,  is  unable  to  perform." 

§  511.  Where  the  Purchaser  has  given  Notes  and 
has  Possession. — Where  the  purchaser  has  given  notes  for  the 
purchase  money  and  taken  possession  of  the  land,  he  cannot 
rescind  the  agreement  and  resist  the  payment  of  the  notes,  so 
long  as  he  remains  in  possession.^*     And  a  party  who  seeks 

^  Franchot  v.  Leach,  5  Cow.,  506;  Alna  v.  Plummer,  4  Me.,  258;  Shadnon 
V.  Comstock,  21  Wend.,  457.  See,  also,  Marshall  v.  Haney,  4  Md.,  498;  s. 
c,  9  Id.,  194;  Wldteside  v.  Jennings.  19  Ala.,  784;  Goodpaster  v.  Porter  & 
Courtney,  11  la.,  161,  and  this  seems  to  be  the  English  doctrine;  Goodison  v. 
Nunn.  4  T.  R.,  761;  Glazebrook  v.  Woodrow,  8  T.  R.,  366.  See,  also, 
Sanbum  v.  Chamberlain,  101  Mass.,  409. 

^  Means  v.  Milliken,  33  Pa.  St.,  517. 

=^5  Wilhelm  v.  Fimple,  31  la.,  131.  See,  same,  Kerst  v.  Gender,  1  Pittsb. 
(Pa.),  314. 

*  Nichols  V.  HiU,  32  Tex.,  516;  Stephens  v.  Evans,  30  Ind.,  39. 


420  THE  LAW  OF  DAMAGES. 

Damages  for  False  Kepresentation  and  Warranty. 

to  rescind  a  sale  of  lands  on  account  of  fraud,  defect  of  title 
or  want  of  authority  in  the  vendor  to  sell,  must  be  diligent 
and  prompt  to  avail  himself  of  the  discovery  when  made.  If 
he  retains  the  possession  and  enjoyment  of  the  preinises  with 
notice  of  the  facts  giving  him  a  right  to  rescind,  that  right  will 
be  lost  unless  he  can  show  some  good  excuse  for  the  delay." 
So,  neither  the  seller  nor  the  purchaser  can  generally  be  dis- 
charged from  the  obligation  of  a  complete  performance  until 
he  has  performed  or  offered  to  perform  on  his  part,  and 
demanded  it  of  the  other."*  And  where  one  entered  into  a 
contract  to  purchase  land,  agreeing  to  pay  the  purchase  money 
in  installments,  and  afterwards,  but  before  any  payment 
became  due,  notified  the  vendor  that  he  repudiated  the  con- 
tract; it  was  held,  that  this  fjict  would  not  warrant  the  bring- 
ing of  a  suit  on  the  contract  for  the  installments  before  they 
became  due.^* 

So  in  Iowa,  where  in  an  action  on  a  promissory  note,  the 
answer  alleged  that  the  consideration  of  the  note  was  a  bond 
for  the  conveyance  of  certain  real  estate  on  the  payment  of  the 
note,  and  that  the  real  estate  was  so  incumbered  with  judg- 
ments against  the  plaintiff  that  it  was  beyond  his  power  to 
perform  his  agreement;  it  was  held,  that  the  defense  was  a 
valid  one,  and  that  a  demurrer  to  the  answer  on  the  ground 
that  it  did  not  constitute  a  defense  to  the  plaintiff's  claim 
should  have  been  overruled.^" 

§  512.  Damages  for  False  Representation  and  War- 
ranty.— To  enable  a  purchaser  to  recover  for  false  representa- 
tions made  by  the  vendor  either  as  to  the  quality  or  quantity 
of  lands,  it  must  appear  that  these  representations  were  made 
with  the  knowledge  that  they  were  false,  and  that  the  pur- 

=7  Garrett  v.  Lynch,  45  Ala.,  204  (1871);   Foxworth  v.  Bullock,  44  Miss., 
457  (1871). 
^  Crabtree  v.  Leavings,  53  111.,  526  (1870). 
=9  Greenway  v.  Gaither,  Taney  (U.  S.  C.  C),  227. 
3°  Lyon  V.  O'Kell,  14  la.,  233. 


COYENANTS— KEAL  ESTATE.  421 

Defense  of  Purchaser  on  Ground  of  Fraud. 


chaser  was  deceived  thereby;  but  where  there  is  a  warranty  as 
to  quantity  or  quality,  the  knowledge  of  the  vendor  is  imma- 
terial.'* 

The  measure  of  damages  in  such  a  case  is  the  amount  of 
the  money  value  of  the  consideration  received  by  such  vendor, 
wdien  the  plaintiff  has  rescinded  the  contract  and  placed  the 
vendor  in  statu  quo.  But  where  the  plaintiff  has  not  rescinded 
or  offered  to  rescind  the  contract,  the  measure  of  damages  is 
the  difference  between  the  value  of  the  land  as  warranted  or 
represented  and  its  actual  value.'"' 

And  where  there  is  a  deficiency  in  the  quantity  of  the  land 
as  falsely  represented  or  warranted,  the  measure  of  damages 
is  the  contract  price  per  acre  for  the  deficiency,  with  interest 
thereon.''  But  where  the  vendee  has  subsequently  sold  the 
land,  receiving  the  full  consideration  therefor,  he  cannot  plead 
in  defense  of  an  action  for  the  purchase  price,  a  deficiency  in 
the  land.'* 

§  613.  Defense  of  a  Purchaser  on  the  Ground  of 
Fraud. — In  an  action  for  the  price  of  land  sold,  the  pur- 
chaser may  set  up,  as  a  defense,  the  fact  that  the  vendor 
defrauded  him  by  false  representations  as  to  the  quality,  q nan- 
s' Brown  v.  Hamilton,  15  Minn.,  26;  the  rule  of  caveat  emptor  applies  in 
such  a  case;  Wilson  v.  Strayhon,  26  Ark.,  28  (1870);  Holmes  v.  Clark,  10  la., 
423;  Gates  v.  Reynolds,  13  la.,  1;  Hallam  v.  Todhunter,  24  la.,  166;  Kim- 
mons  V.  Hunter  &  Lockhart,  13  la.,  327;  Grimes  v.  Martin,  10  la.,  347; 
James  v.  Elliott,  44  Geo.,  237  (1871);  Drake  v.  Hickley,  47  Mo.,  369,  where 
a  mistake  made  by  relying  on  the  false  representations  of  the  vendor  is  good 
ground  for  rescinding  the  contract;  Whitney  v.  Hill,  23  Mich.,  391;  Davies 
V.  Sabita,  63  Pa.  St.,  90;  Grider  v.  Clopton,  27  Ark.,  244. 

s^Ruddington  v.  Henrj',  48  N.  H.,  273;  Gales  v.  Reynolds,  13  la.,  1; 
Moberly  v.  Alexander,  19  la.,  162;  Staley  v.  Murphy,  47  111.,  241.  See,  also, 
Percival  v.  Hicborn,  56  Me.,  575;  Hahn  v.  Cummings,  3  la.,  583;  Likes  v. 
Baer,  8  la.,  369;  Waler  v.  Johnson,  3  Brews.  (Pa.),  152  (1869);  Frazier  v. 
Tubb,  2  Heisk.  (Tenn.),  662  (1871);  Wilcoxon  v.  Galoway,  67  N.  C,  463; 
George  v.  Talman,  5  Lans.  (N.  Y.),  392. 

33  Hallam  v.  Todhunter,  24  la.,  166. 

34  Child  V.  Burton,  6  Bush.  (Ky.),  617.  See,  also,  Noble  v.  Googins,  99 
Mass.,  231;  Cabot  v.  Christie,  42  Vt.,  121. 


422  THE  LAW  OF  DAMAGES. 

Breach  of  Stipulations  in  Covenants  of  a  Lease. 

tit}',  or  the  condition  or  boundaries,  of  the  hind.  And  an  offer 
to  rescind  is  not  necessary  in  order  to  entitle  the  purchaser  to 
maintain  an  action  for  the  fraud." 

§  514.  Breach  of  the  Stipuljitions  in  the  Covenants 
of  a  Lefise. — The  general  princii)les  of  the  law  of  damages, 
which  we  have  already  treated,  would  be  ap])licable  to  a  breach 
of  the  covenants  of  a  lease,  and  only  a  brief  consideration 
of  the  subject  will  be  here  required.  This  rule  would  give  the 
tenant  his  actual  damages  in  case  of  a  refusal  of  the  landlord 
to  give  possession  according  to  the  terms  of  the  lease;  but 
damages,  which  in  their  character  are  speculative  and  remote, 
would  not  be  recoverable.  Thus,  in  an  action  to  recover 
damages  for  a  failure  on  the  })art  of  the  landlord  to  comply 
with  the  conditions  of  a  lease  of  a  gristmill,  in  respect  to  keep- 
ing in  repair  a  milldam,  by  reason  of  which  failure  the  tenant 
was  without  the  necessary  supply  of  water  to  do  his  business, 
the  measure  of  damages  was  held  to  be  the  difference  between 
the  rental  value  of  the  mill  in  the  condition  it  was  in,  and  its 
value  if  it  had  been  kept  in  the  condition  stipulated  for  by  the 
landlord;  and  that  the  additional  profits  the  plaintiff  would 
have  made  in  the  business,  if  the  mill  had  been  put  and  kept 
in  the  condition  stipulated  by  the  defendant,  were  too  remote 
and  speculative  to  constitute  a  basis  of  recovery.'"  And  in 
an  action  for  rent  pa^'able  in  property,  the  measure  of  dama- 
ges is  the  value  of  the  property  at  the  time  of  the  demand." 

And  where,  in  violation  of  the  terms  of  a  lease,  the  lessor 
refuses  to  let  the  lessee  into  possession  of  the  demised  premi- 
ses, the  usual  measure  of  damages  is  the  difference  between 
the  rent  reserved  and  the  value  of  the  premises  during  the 
term.     But,  it  is  not  in  all  cases  confined  to  this,  as,  where 

35Myers  v.  Extell,  47  Miss.,  4  (1872);  Lovejoy  v.  Roberts,  35  Tex.,  605 
(1872). 

36  Winne  v.  Kelly,  34  la.,  339. 

37  Safely  v.  Gilmore,  21  la.,  588. 


COVENANTS— EEAL  ESTATE.  423 


Withholding  Possession— In  Case  of  Eviction  of  Tenant. 


the  lessee  has  sustained  a  particular  loss  thereby,'*  and  especi- 
ally where  such  loss  was  contemplated  by  the  parties,  at  the 
time  of  the  contract,  as  the  result  of  a  breach."' 

§515.  For  Withholding  Possession  .—In  Missouri,  in 
an  action,  on  a  covenant  in  a  lease,  for  withholding  possession 
from  the  plaintiff  where  he  had  been  a  non-resident  of  the  state 
and  had  removed  to  that  state  for  the  purpose  of  occupying  the 
premises,  it  was  held,  that  he  was  not  entitled  to  recover  his 
expenses  incurred  in  the  removal;  but,  that  the  measure  of 
damages  would  be  the  difference  in  the  rent,  as  provided  for 
in  the  lease,  and  tlie  rental  value  of  the  premises.'" 

So  in  a  recent  case  in  Pennsylvania,  in  an  action  to  recover 
for  a  breach  of  a  contract  to  lease  to  plaintiff  a  dye-shop  and 
furnish  him  work,  he  having  put  in  fixtures;  it  was  held,  that 
the  measure  of  damages  was  the  value  of  the  bargain." 

The  rule  would  undoubtedly  be  different  if  the  vendor,  at  the 
time  of  the  contract  in  the  former  case,  had  notice  of  the 
purpose  for  which  the  lessee  had  leased  the  premises,  and  that 
he  did  so  with  the  intention  of  removing  to  occupy  them.  In 
such  a  case  it  would  come  within  the  rule  in  Iladleij  v.  Bax- 
<??i6ZaZe,  heretofore  considered  in  treating  of  contracts;"  and 
the  tenant  should  recover  such  damages,  in  that  case,  as  the 
parties  had  reason  to  contemplate  at  the  time  would  result 
from  a  breach  in  that  respect." 

§516.  In  case  of  Eviction  of  the  Tenant  .—The  lessee, 
in  case  of  eviction,  should  recover  his  actual  damages  sus- 
tained thereby.     Thus,  in  Illinois,  where  in  an  action  on  the 


38  Adair  v.  Bogle,  20  la,  238. 

39  Hadley  v.  Baxendale,  9  Exch.,  341. 

40  Hughes  V.  Hood,  50  Mo.,  350  (1872);   Trail  v.  Granger,  84  N.  Y  (Seld  ) 
115. 

4'  Garsed  v.  Turner,  71  Pa.  St.,  56  (1872). 
^  See,  ante,  §  252. 

43  Johnson  v.  Arnold,  2  Gush.  (Mass.),  46;  Driggs  v.  Dwight,  17   Wend., 
71;  Dean  v.  White  &  Haight,  5  la.,  266;  Adair  v.  Boyle,  20  Id.,  238. 


424  THE  LAW  OF  DAMAGES. 

In  Case  of  Eviction  of  Tenant. 

case,  by  the  lessee  against  the  lessor,  for  damages  resulting  to 
the  former  from  the  false  and  fraudulent  representations  of 
the  lessor,  that  he  was  the  owner  of  the  premises,  and  the 
lessee,  on  the  faith  of  such  representations,  had  erected  a  shop 
on  the  premises,  and  on  eviction  under  a  paramount  title  was 
compelled  to  remove  the  shop,  machinery,  etc.,  erected  thereon, 
to  another  lot,  it  was  held,  that  the  measure  of  damages  in 
respect  to  the  expense  of  removal  should  be  limited  to  the 
necessary  expense  thereof;  and  in  reference  to  the  cost  of 
another  lot  whereon  to  place  his  shop  during  the  unexpired 
portion  of  the  term,  that  the  damages  should  be  confined  to 
the  rent  of  a  lot  similarly  situated  and  of  the  equal  rental 
value  of  the  one  the  plaintiff  was  compelled  to  leave." 

So,  where  a  tenant  who  had  been  wrongfully  evicted  from  a 
barn,  which  he  occupied  as  a  livery  stable,  by  his  landlord 
who  destroyed  the  barn,  it  was  held  that  he  might  recover  for 
the  proper  length  of  time,  for  the  loss  of  profits  from  board- 
ing the  horses  of  others,  as  well  as  the  difference  in  cost  of 
keeping  his  own  horses  and  of  hiring  them  boarded,  where  the 
evidence  showed  that  such  damages  were  the  natural  and 
proximate  consequence  of  the  trespass  and  eviction  com- 
plained of.  This  case,  however,  came  within  the  special  ])ro- 
visions  of  a  statute  in  reference  to  a  violent  eviction." 

And  it  should  be  received  as  authority,  only  with  the 
qualification  that  the  lessee  used  reasonable  means  to  procure, 
under  such  circumstances,  another  stable.  The  remote  dama- 
ages  allowed  in  this  case  could  perhaps  be  justified  on  the 
ground  that  the  parties  had  reason  to  contemplate  these  dama- 
ges, sustained  and  allowed  for  a  breach  of  the  contract,  at  the 
time  it  was  made,  as  a  result  of  the  breach,  bringing  it  within 
the  rule  of  Hadley  v.  Baxendale. 

In  Virginia  where  a  lessee  was  evicted  from  a  part  of  the 

44  Wilson  V.  Raybould,  56  111.,  417  (1870). 
«Shaw  V.  Hoffman,  21  Mich.,  151,  (1872). 


COYENANTS— KEAL  ESTATE.  425 

Agreement  to  Kepair. 

demised  premises  by  one  claiming  under  a  superior  title  to 
that  of  the  lessor,  he  was  held  discharged  from  the  payment 
of  so  much  rent  onlj  as  was  properly  chargeable  to  the  part 
of  the  premises  from  which  he  was  evicted."  But  it  was  also 
held,  in  another  case,  that  where  the  lessee  was  evicted  from 
only  a  part  of  the  premises,  by  the  wrongful  act  of  the  lessor, 
he  was  discharged  thereby  from  the  payment  of  any  rent  until 
possession  was  restored.^' 

And,  in  Massachusetts,  where  the  landlord  erected  a  build- 
ing in  the  back  yard  of  the  premises  leased,  the  effect  of 
which  was  to  render  unfit  for  use,  two  rooms  used  by  the  ten- 
ant, and  tbe  tenant  did  not  give  his  assent  thereto;  it  was 
held,  that  the  tenant  might  treat  the  act  as  an  eviction,  give 
up  the  premises,  and  decline  to  pay  rent." 

§  518.  Agreement  to  Repair.— The  rule  of  damages  in  case 
of  a  breach  of  an  agreement  to  repair,  would  be  the  same  whether 
it  was  in  the  form  of  a  covenant  or  a  simple  agreement,  in  writ- 
ing or  otherwise,  where  it  is  valid  as  an  agreement.  In  either 
case  actual  damages  are  recoverable.  And  in  an  action  on  an 
agreement  to  keep  the  premises  in  good  and  sufficient  repair, 
it  was  held,  that  the  defendant  might  show  the  state  of  repair 
at  the  commencement  of  the  lease,  in  order  that  the  jury 
might  determine  the  damages  for  which  the  defendant  was 
liable." 

16  Moffat  V.  Strong,  9  Bosw.  (N.  Y.),  57;  Mark  v.  Patchin,  29  How.  Pr., 
20. 

*7  Tunis  V.  Grandy,  22  Gratt.  (Va.),  109.  See,  also,  Wolf  v.  Weiuer,  7 
Phil.  (Pa.),  274. 

48  Royce  v.  Duggenheim,  106  Mass.,  201,  (1870).  See,  also,  the  same, 
Home  Ins.  Co.  v.  Sherman,  46  N.  Y.,  370,  (1871);  Edgerton  v.  Page,  20  N. 
Y.,  281;  Lounsbery  v.  Snyder,  31  Id.,  514;  Cram  v.  Dresser,  2  Sandf.,  120. 
But  see,  under  the  staute  of  New  York,  Johnson  v.  Oppenheim,  12  Abb.  N. 
Y.  (N.  S.),  449;  43  How.  Pr.,  433.  See,  also,  in  case  of  eviction  from  part 
of  the  premises,  Christopher  v.  Austin,  11  N.  Y.,  216;  Peck  v.  Hiler,  24 
Barb.,  178. 

«  Burdett  v.  Withers,  2  Nev.  &  P.,  122. 


426  THE  LAW  OF  DAMAGES. 


Agreement  to  Kepair. 


And  where,  at  the  time  of  taking  possession  of  the  premises, 
they  were  old  and  in  bad  repair,  and  there  was  a  covenant  to 
repair  in  the  lease,  and  they  were  underlet  to  the  defendant 
with  a  stipulation  that  he  would  maintain  them  in  the  same 
condition,  and  they  were  destroyed  by  fire,  and  the  cost  of 
rebuilding  would  be  £1635,  and  when  thus  rebuilt  tliey  would 
be  worth  £600  more  than  they  were  worth  at  the  time  of  the 
fire;  it  was  held,  that  the  defendant,  being  unable  to  rebuild 
the  premises  burned  without  putting  them  in  better  condi- 
tion, the  measure  of  damages  was  only  the  value  of  the 
repair,  less  the  £600." 

And  where  the  lessors  of  a  hotel  were,  by  the  terms  of  the 
lease,  bound  to  keep  it  in  good  repair,  and  the  tenant  had  his 
option  to  make  the  repairs,  and  recover  the  expense  of  the 
lessors,  or  omit  the  same  and  recover  for  the  damages  sus- 
tained thereby,  and  the  lessee  adopted  the  latter  course;  it 
was  held  that  he  was  entitled  to  recover,  or  to  recoup  against  the 
lessor's  claim  for  rent,  the  fair  value  of  the  use  of  the  portion 
of  the  premises  which  had  not  been  used  in  consequence  of 
the  want  of  repair  during  the  time  they  were  unoccupied." 

§  519.  The  loss  of  profits  in  consequence  of  the  failure  of 
the  lessor  to  repair  would  generally  be  denied,  on  the  ground 
that  the  lessee  should  use  reasonable  means  to  avoid  loss;  and 
the  loss  of  profits  might  be  ordinarily  avoided  by  reason- 
able efforts,  and  reasonable  expenses."  But  where,  by  the 
terms  of  the  lease  of  a  quarry,  the  lessors  were  bound 
to  repair  a  drain  on  the  premises,  and  the  lessee  notified 
them    that   it   was   out   of    rej)air,  and  they  promised  from 

5*  Yates  V.  Dunster,  11  Exch.,  15.  See,  also,  Middlekauff  v.  Smith,  1 
Md.,  343;  Fisher  v.  Goebel,  40  Mo..  475;  Davis  v.  Underwood,  2  H.  &  N., 
570;  Smith  v.  Peat,  9  Exch.,  161;  Vivian  v.  Champion,  2  Ld.  Raym.,  1125; 
Chamberlain  v.  Parker,  45  N.  Y.,  569. 

53  Meyers  v.  Barns,  33  Barb.  (N.  Y.),  401;  affirmed,  35  N.  Y.,  269.  See, 
also,  Kepp  v.  Merwin,  52  N.  Y.,  542  (1873). 

54  Green  v.  Mann,  11  lU.,  613;  Bankardv.  Babcock,  17  Abb.  (N.  Y.),  421. 


COYENANTS— EEAL  ESTATE.  427 

Agreement  to  Repair, 

time  to  time  to  make  the  repairs,  and  finally  did  so,  but 
not  until  two  months  after  the  time  it  should  have  been 
done;  it  was  held,  that  the  lessee  was  entitled  to  recover  what- 
ever damages  was  sustained  bj  his  inability  thereby  to  work 
the  quarry /° 

So,  in  an  action  against  a  landlord  for  a  breach  of  covenant 
to  repair,  although  the  ordinary  measure  of  damages,  as  we 
have  intimated,  and  on  general  principles,  would  be  the 
expense  of  placing  the  premises  in  proper  repair,  yet  where 
the  landlord  has  undertaken  to  do  the  same,  but  has  done  it 
in  such  a  negligent  and  insufiicient  way  that  damage  results 
to  the  tenant,  he  should  be  compensated  for  all  the  actual  loss 
resulting  therefrom,^" 

§  520.  But  in  Louisiana,  where  in  such  a  case  repairs  are 
made  by  the  tenant,  without  giving  any  notice  to  the  landlord 
to  make  them,  he  is  not  liable  therefor/*  And  in  the  same 
state,  where  the  lessee,  had  notified  the  lessor  that  the  premises 
were  in  a  leaky  condition,  it  was  held,  that  if  the  lessor  refused 
to  repair  the  same,  the  lessee  might  cause  them  to  be  repaired, 
so  that  they  would  be  tenan table,  and  deduct  the  expense  of  the 
repairs  from  the  rent/'  So,  in  the  absence  of  an  express  agree- 
ment to  that  effect,  a  tenant  from  year  to  year  is  not  bound 
to  re-build  a  ftillen  chimney.  And  where  a  landlord  in  such  a 
case,  negligently  suffers  a  chimney  to  remain  in  so  defective 
a  state  that  it  falls  down,  causing  loss  and  injury  to  the  tenants 
goods,  the  landlord  is  liable  therefor  in  damages,'" 

§  521.  But  a  landlord  is  not  generally  liable  for  injuries 
sustained  through  the  defective  condition  of  the  building  or 
fixtures,  unless  he  is  chargeable  with  some  positive  neglect  of 

55  Keyes  v.  Western  Vt.  Slate  Co.,  34  Vt.,  81. 

56  Walker  v.  Swayzee,  3  Abb.  Pr.,  136, 

58  Tavort  v,  Mittler,  21  La.  An.,  220.  See,  also,  same;  Grosebeck  v. 
Lord.  33  N.J.  L.,  240. 

59  Westermore  v.  Street,  21  La.  An.,  714  (1869). 
<°  Eagle  V,  Swayze,  1  Daly  (N,  Y,),  140. 


428  THE  LAW  OF  DAMAGES. 

Agreement  to  Repair. 

duty  or  affirmative  misfeasance,  or  unless  he  was  under  cove- 
nant to  repair."  Nor  can  tlie  lessee  make  repairs  in  such  a 
case  and  charge  the  lessor  with  the  costs  of  them."  Nor  is 
the  landlord  responsible  for  the  entire  destruction  of  the  build- 
ing or  any  part  thereof  by  fire,  in  the  absence  of  an  agreement 
to  re-build  or  repair  for  the  benefit  of  the  tenant."  Nor  will 
a  covenant  to  repair  be  implied  on  the  part  of  either  landlord 
or  tenant;  nor,  where  there  is  a  covenant,  will  it  be  enlarged 
by  construction.  Nor  will  voluntary  repairs  made  by  the 
landlord  raise  a  presumption  of  a  contract  on  his  part  to 
repair."*  And  where  D.  leased  to  C.  a  room  on  the  ground 
floor  of  a  building  to  be  used  as  a  store,  which  building  was 
at  the  time  in  process  of  erection,  and  agreed  that  he  would 
have  said  store  well  fitted  up,  and  the  store  extended  back 
some  distance  on  the  same  premises  beyond  the  upper  story; 
and  D.  afterwards  rented  out  the  upper  portion  of  the  build- 
to  be  used  as  a  boarding  house,  and  for  the  accommodation  of 
the  lessee  of  the  upper  portion,  constructed  a  kitchen  over  the 
extension  of  the  store  below,  and  the  accumulation  of  trash 
under  this  kitchen  choked  the  gutters  and  in  consequence  dam- 
aged C's,  stock;  it  was  held,  that  D.  was  liable  to  C.  for  the 
damages  sustained."^ 

§  522.  Where  a  lessee  was,  by  the  terms  of  his  lease,  to  have 
the  use  of  the  premises  for  five  years,  and  in  payment  was  to 
make  certain  repairs  and  additions  to  the  premises  within  the 
first  two  years,  and  in  default  the  lessor  was  to  have  the  right 
to  re-enter  and  expel  the  lessee,  and  the  repairs  being  nearly 
but   not   quite  made  within    the   two  years  the  lessee  was 

« O'Brien  v.Copwen,  59  Barb.  (N.  Y.),  497. 

6»Biddle  v.  Reed,  33  Ind.,  529.  See,  also,  Benjamin  v.  Haney,  51  111., 
492  (1869). 

«3Dunpe  V.  Gennin,  45  N,  Y.,  119.  See,  also,  Russell  v.  Rush,  2  Pitts. 
(Pa.),  134;  Kahn  v.  Love,  3  Oreg.,  206;  Martin  v.  Washburn,  23  La.  An.,  427. 

«4 Moore  v.  Webber,  71  Pa.  St.,  429  (1872). 

«s  Center  v.  Davis,  39  Geo.,  210  (1869). 


COYENANTS— REAL  ESTATE.  429 


Agreement  to  Repair. 


expelled;  it  was  held,  that  the  lessee  was  entitled  to  recover  at 
the  expiration  of  the  five  years,  for  the  value  of  the  labor  and 
material,  beyond  the  fair  value  of  his  use  and  occupation 
down  to  the  time  he  was  expelled,  less  any  damage  sustained 
by  the  lessor  by  reason  of  the  breach/* 

§  523.  The  damages  sustained  by  a  breach  of  other  com- 
mon provisions  of  a  lease,  such  as  an  agreement  to  pay  rent, 
surrender  the  possession,  etc.,  are  governed  by  the  general  rules 
of  damages  on  breaches  of  contracts,  and  it  will  be  unneces- 
sary to  furnish  any  other  for  those  special  cases. 

««  Smith  V.  Newcastle,  48  N.  H.,  70,  (1868).  See,  also,  Ardisco  Oil  Co. 
V.  Richardson,  63  Pa.  St.,  162. 


430  THE  LAW  OF  DAMAGES. 

Discretion  of  Jury— Plaintiff  should  be  Identified. 


CHAPTER  XYII. 


DAMAGES  ON  A  BREACH  OF  PROMISE  OF 
MARRIAGE. 

Section  534.  Damages  in  the  Discretion  of  the  Jury. 

535.  The  Plaintiff  Should  be  Indemnified. 

536.  Exemplary  Damages  Always  Allowable. 

537.  Matters  that  Constitute  no  Defense. 

538.  Matters  in  Aggravation. 

539.  Mitigation. 

§  534.    Damages   in  the  Discretion  of  the  Jury. — 

Damages  in  an  action  for  a  breach  of  j)romise  of  marriage, 
rest  largely  in  the  discretion  of  the  jury;  and  this  discretion 
is  seldom  interfered  with,  and  should  be  in  no  case,  except 
where  it  is  manifest  that  the  jury  were  influenced  by  prejudice, 
passion,  or  corruption.' 

§  535.  Plaintiff  should  be  Indemnified.— The  plaintiff 
is  entitled  at  least,  to  such  damages  as  would  place  her  in  as 
good  a  pecuniary  condition  as  she  would  have  been  if  the  con- 
tract had  been  fulfilled;  and  hence  it  is  always  proper  for  the 
plaintiff  to  show  the  pecuniary  ability  of  the  defendant,''  as 
well  as  injuries   sustained  from  anguish  of  mind,  blighted 

»  Gaugh  V.  Farr,  1  Y.  &  J..  477;  Goodall  v.  Thurman,  1  Head.,  (Tenn.), 
209. 

»  Lawrence  v.  Cook,  56  Me.,  187,  (1868);  Sprague  v.  Craig,  51  111.,  288, 
(1869).  And  anxiety  of  mind,  if  produced  by  the  violation  of  the  promise,  is 
proper  to  be  considered  in  the  estimation  of  damages.  Tobin  v.  Shaw,  45 
Me.,  331. 


BKEACH  OF  PROMISE  OF  MARRIAGE.      431 

Exemplary  Damages  Always  Allowable— Matters  that  Constitute  no  Defense. 

afl'ections,  disappointed  hopes,  and  injury  to  the  character, 
directly  resulting  from  the  breach.^ 

§  536.    Exemplary  Damages   always  Allowable.— 

But  this  is  not  the  necessary  limit  of  damages.  Circumstances 
of  aggravation  may  occur,  and  this  action  forms  an  exception 
to  the  general  rule,  that  exemplary  or  punitive  damages  cannot 
be  allowed  for  a  breach  of  contract.  The  same  rule  prevails 
in  this  action  as  in  torts,  and  the  plaintiff  may  recover  exem- 
plary or  punitive  damages." 

§  537.    Matters  that  Constitute  no  Defense.— Nor  is 

the  plaintiff  precluded  from  recovering  damages  if  the  defend- 
ant at  the  time  of  the  engagement,  knew  the  plaintiff  to  be  a 
loose  and  immodest  woman;  or  if  she  afterwards  prostituted 
her  person  to  another  man,  with  the  defendant's  connivance.* 
Kor  will  the  fact  that  the  plaintiff  had  an  illegitimate  child 
before,  if  known  to  the  defendant  at  the  time  the  promise  was 
made,  bar  an  action  against  him  for  a  breach  of  promise  of 
marriage.' 

And,  in  action  by  a  woman  to  recover  damages  for  a  breach 
of  promise  of  marriage,  it  was  held,  that  the  jury  in  estimat- 
ing damages  might  take  into  consideration  the  fact  that  the 


3  Burnett  v.  Simpkins,  24  111.,  264.    See,  also,  ante,  §  §  72,  94. 

4  Southard  v.  Rexford,  6  Cow.,  254;  Torre  v.  Summers,  2  Nott  &  McC, 
267;  Coryell  v.  Colbaugh,  Coxe,  77;  Stout  v.  Prall,  Coxe,  79;  Green  v.  Spencer, 
3  Mo.,  225;  Hill  v.  Maupin,  3  Mo.,  323;  Thorn  v.  Knapp,  42  N.  Y.,  474, 
And  evidence,  of  the  time  a  marriage  engagement  continued,  is  proper  for 
the  consideration  of  a  jury.  Grant  v.  Willey,  101  Mass.,  356.  And  if,  by 
means  of  the  promise,  the  defendant  seduced  plaintiff,  this  is  a  matter  in 
aggravation  of  damages.  Tubbs  v.  Van  Kleek,  12  111.,  446;  Burnett  v. 
Shnpkins,  24  Id..  264;  Kniffen  v.  McConnell,  .30  N.  Y.,  285;  Roper  v.  Clay, 
18  Mo.,  383;  White  v.  Campbell,  13  Gratt.,  (Va.)  573. 

s  Johnson  v.  Smith,  3  Pittsb.  (Pa.),  184;  Butler  v.  Eschleman,  18  111.,  44; 
Burnett  v.  Simpkins,  24  111.,  264. 

«  Bench  v.  Merrick,  1  Car.  &  K.,  463;  Irving  v.  Greenwood,  1  C  &  P., 
850;  Woodward  v.  Bellamy,  2  Root.  (Com.),  354;  2  Saunders,  P.  &  E.  347; 
Pars,  on  Con.,  550;  Chitty  on  Con.,  538;  Morgain  v.  Yarborough,  5  La.  An., 
316;  Burnett  v.  Simpkins,  24  HI.,  264. 


432  THE  LAW  OF  DAMAGES. 

Matters  in  Aggravation. 

plaintiff  was  seduced  hy  the  defendant,  after  tlie  promise  was 
made.'  So,  it  is  no  defense  to  tlie  action  that  the  defendant 
at  the  time  of  the  promise  was  a  married  man.'  And  a  con- 
tract to  marry  may  be  broken  by  the  declaration  or  renunciation 
of  a  party,  or  by  marrying  another  before  the  time  fixed  upon 
has  arrived,  so  as  to  entitle  the  other  party  to  maintain  an 
action  for  the  breach  of  the  contract  forthwith.* 

§  538.  Matters  in  Aggravation- — If  the  element  of 
fraud  enters  into  the  act  of  the  defendant,  either  in  making 
the  contract  or  in  its  breach,  exemplary  damages  may  be 
allowed."  And  an  allegation  by  defendant  by  way  of  justifi- 
cation or  mitigation,  in  defense  of  an  action  for  a  breach  of 
promise  of  marriage,  that  the  plaintiff  is  unchaste,  without 
any  reasonable  expectation  that  he  can  establish  it,  aud  it  is 
not  established  by  proof  on  the  trial,  should  be  considered  by 
the  jury  in  aggravation  of  damages."  Thus,  Southard  v. 
Rexford^  supra,  was  an  action  for  a  breach  of  promise  of 
marriage.  The  plea  was  a  general  issue,  with  notice  that  the 
defendant  would  prove  in  his  defense  that  the  plaintiff  had  at 
various  times  after  the  alleged  promise  committed  fornication 
with  various  persons,  specifying  them.  At  the  trial  the 
defendant  attempted  to  prove  this  defense,  but  failed.  The 
learned  Judge  Walworth,  before  whom  it  was  tried,  charged 
the  jury,  that,  "  In  cases  of  this  kind,  the  damages  are 
always  in  the  discretion  of  the  jury,  and  in  fixing  the  amount 

7  Sherman  v.  Rawson,  102 Mass.,  395;  (1870);  Burnett  v.  Simpkins,  supra; 
Tubbs  V.  Van  Kleek,  12IU.,446;  Lauer  v.  Scbatenburg,  33  Md.,  288,  (1870); 
Fidler  v.  McKinley,  21  111.,  313.  Green  v.  Spencer,  3  Mo.,  318;  Roper  v. 
Clay,  18  Id.,  383. 

8  Kelly  V.  Riley,  106  Mass.,  330. 

9  HaUoway  v.  Griffeth,  32  la.,  409;  Short  v.  Stone,  8  Q.  B.,  358;  25  L.  J., 
Q.  B.  143.  But,  see,  contra,  Frost  v.  Knight,  63  L.  T.,  N.  S.,  714,  Exch., 
(1871). 

"Draydon  v.  Knowles,  33  Ind.,  148,  (1870). 

"  Thorn  v.  Knapp,  supra;  Denslow  v.  Van  Horn,  16  la.,  476;  Southard  v. 
Rexford,  6  Cow.,  254.    See,  also,  Davis  v.  Slagle,  27  Mo.,  600. 


BEEACH  OF  PKOMISE  OF  MAERIAGE.      433 


Matters  in  Aggravation. 


they  have  a  right  to  take  into  consideration  the  nature  of  the 
defense   set   np   by   the  defendant.     In   his   defense   he  has 
attempted  to  excuse  his  abandonment  of  the  plaintiff  on  the 
ground  that  she  is  unchaste  and  lias  committed  fornication 
with  different  individuals.     But   it   appears  from  the   testi- 
mony of  his  own  witness,  that  her  character  in  that   respect 
has   not  been  tarnished,    even    by    the   breath  of  suspicion.' 
With   such  a  defense  on  the    record  a  verdict  for  nominal 
or  trifling  damages  may  be  worse  for  her  reputation   than  a 
general  verdict  for  the  defendant.     If  the  defendant  has  won 
her  affection  and  promised  her  marriage,  and  has  not  only 
deserted  her  without  cause,  but  has  also  spread  this  defense  on 
the  record  for  the  purpose  of  destroying  her  character,  the 
jury  will  be  justified  in  giving  exemplary  damages."     And  in 
the  Supreme  Court  of  New  York,  Sutherland,  J.,  said:  "Upon 
the  question  of  damages  the  charge  of  the  judge  seems  to  be 
unexceptionable.     There  can  be  no  settled  rule  by  which  they 
are  in  every  case  to  be  regulated.     They  rest  in  the  sound  dis- 
cretion of  the  jury  under  the  circumstances  of  each  particular 
case;  and  where  the  defendant  attempts  to  justify  his  breach 
of  promise  of  marriage  by  stating  upon  the  record,  as  the  cause 
of  his  desertion    of  plaintiff,  that   she  had  repeatedly   had 
criminal  intercourse   with  various  persons,  and  fails  entirely 
in  proving  it,  this  is  a  circumstance  which  ought  to   aggra- 
vate the  damages.     A  verdict  for  nominal  or  trifling  dama- 
ges under  such  circumstances  would  be  fatal  to  the  charac- 
ter of   the   plaintiff;    and   it  would  be  a  matter    of  regret 
indeed,  if  a  check  upon   a  license  of    this  description    did 
not  exist  in  the  power  of  the  jury  to  take  it  into  consider- 
ation in  aggravation  of  damages."      And  it  may  be  said  that 
generally,  where  the  defendant  attempts  dishonestly  to  injure 
the  plaintiff's  reputation,  by  allegations  made  under  pretense 
of  justification  or  excuse  for  his  own  acts,  exemplary  damage 
may  be  allowed."     So,  evidence  of  the  seduction  of  the  plain- 

*  Simpson  v.  Black,  27  Wis.,  206  (1870). 
28 


434  THE  LAW  OF  DAMAGES. 

Mitigation. 

tiff,  by  the   defendant,  is  admissible  in  aggravation  of  dam- 
ages/ 

§  539.  Mitigation. — Evidence  of  tlie  bad  liabits  of  the 
plaintiff,  such  as  being  an  excessive  drinker  of  intoxicating 
liquors,  and  therefore  not  a  fit  or  desirable  companion  in  mar- 
ried life,  although  not  competent  as  a  defense,  is  admissible 
in  mitigation,"  But  a  defendant  cannot  show  in  mitigation, 
that  since  the  commencement  of  the  action  the  plaintiff  has 
•made  declarations  to  the  effect  that  she  had  no  affection  for  the 
defendant,  and  could  not  think  of  marrying  him  but  for  his 
property/  Kor  will  mutual  improprieties  and  lewdness 
between  the  betrothed  parties,  bar  a  right  of  action  for  a  breach 
of  promise  of  marriage,  or  be  received  in  mitigation  or  aggra- 
vation of  damages.'  But  general  lewdness  or  lascivious  con- 
duct, even  where  known  to  the  defendant  at  the  time  of  the 
engagement,  may  be  considered  in  mitigation.' 

And  it  is  held,  that  an  allegation  of  bad  character  as  a 
defense  or  in  mitigation  of  damages,  and  a  failure  to  prove 
the  same,  is  not  sufficient  to  justify  a  charge  to  the  jury  that 
this  must  be  considered  by  the  jury  in  aggravation  of  dama- 
ges. But  in  order  to  be  so  considered  it  must  appear  that 
said  defense  was  wanton,  and  without  any  reasonable  belief  or 
expectation  that  the  defendant  could  establish  it  on  the  trial.' 

3  KeUy  V.  RUey,  106  Mass.,  339  (1871);  Coil  v.  Wallace,  24  N.  J.  L.,  291, 
where  the  seduction  was  subsequent  to  the  promise;  Mathews  v.  Cribbett,  11 
Ohio  St.,  330;  Goodall  v.  Thurman,  1  Head.  (Tenn.),  209;  Matteson  v.  Cur- 
tis, 11  Wis.,  424. 

4  Burton  v.  McCauley,  1  Abb.  (N.  T.),  282. 

5  MiUer  v.  Hayes,  34  la.,  496. 

«  Johnson  v.  Smith,  3  Pittsb.  (Pa.),  184. 

7  Denslow  v.  Van  Horn,  16  la.,  476;  Johnston  v.  Calkins,  1  John's.  Cases, 
116;  Willard  v.  Stone,  7  Cow.,  22;  Palmer  v.  Andrews,  7  Wend.,  143.  See, 
also,  Burnett  v.  Simpkins,  24  111.,  266;  Faulkes  v.  Selway,  3  Esp.,  236; 
Baddely  v.  Mortlock,  1  Holt.  N.  P.,  151;  3  Eng.  C.  L.,  57. 

^  Denslow  v.  Yan  Horn,  supra.  See,  also,  Simpson  v.  Black,  supra; 
Kniffen  v.  McConneU,  30  N.  Y.,  285;  Davis  v.  Slagle,  supra;  Fidler  v. 
McKinley,  21  111.,  815. 


BONDS.  435 

Damages  on  Bonds  Generally. 


CHAPTEE  XYIII. 


COMMON,  STATUTORY,  AND  OTHER  BONDS. 

Section  545.  Damages  on  Bonds  Generally. 

546.  wnen  the  Damages  are  Limited  to  the  Penalty— "When  Not. 

547.  Consequential  and  Remote  Damages. 

548.  Common  Law  Practice. 

549.  Statutory  Bonds— Attachment. 

553.  Mitigation  of  Damages. 

554.  Injunction  Bonds— Elements  of  Damages  on. 
560.    Delivery,  Indemnifying  and  other  Bonds. 

545.  Damages  on  Bonds  Generally. — We  have  con- 
sidered, to  some  extent,  the  subject  of  damages  on  bonds,  in 
connection  with  liquidated  damages,  and  the  subject  of  dam- 
ages on  contracts  and  covenants  relating  to  real  estate;  but  it 
requires  a  fuller  consideration  than  there  given.  We  will 
therefor  consider  it  here  under  the  following  classification: 

1.  Damages  on  bonds  generally. 

2.  Damages  on  statutory  bonds. 

3.  Damages  on  other  bonds. 

The  general  rule  in  reference  to  penal  bonds  is,  that  on  a 
breach  thereof,  the  obligee  may  recover  whatever  will  com- 
pensate him  for  his  actual  loss;  and  that  the  penalty  named 
in  the  bond  is  not  recoverable  as  damages.'     The  penalty  is 

'  Leonard  v.  Speidel,  104  Mass.,  356;  Dehler  v  Held,  50  111.,  491;  Rickert- 
son  V.  Richardson,  19  Cal.,  330;  Gower  &  Holt  v.  Carter  &  Shatuck,  3  Iowa, 
244. 


436  THE  LAW  OF  DAMAGES. 


When  Damages  Limited  to  Penalty— When  not. 

generally  considered  as  security  and  not  as  liquidated  dama- 
ges.' 

§  546.  When  the  Damages  Limited  to  the  Penalty— 
When  Not. — As  a  general  rule,  the  damages  cannot  exceed 
the  penalty  of  the  bond.'  But  whether  the  damages  recover- 
able upon  a  penal  bond,  are  limited  to  the  penalty  or  not, 
depends  on  the  circumstances  of  each  case,  and  is  frequently 
afi'ected  by  the  motives  and  conduct  of  the  obligor,  in  refer- 
ence to  the  obligation ;  and  at  common  law,  by  the  form  of 
the  action.  In  an  action  on  the  covenants  or  stipulations 
of  a  bond  for  the  sale  and  conveyance  of  real  estate,  the  plain- 
tiff maj'  recover  more  or  less  than  the  amount  of  the  penalty, 
depending  upon  the  cause  of  the  failure  to  convey.  If  the 
vendor  is  honest,  and  is  prevented  from  making  the  convey- 
ance by  an  unforeseen  cause  which  he  could  not  control,  the 
vendee  should  recover  only  nominal  damages  in  addition  to 
the  purchase  money  which  he  has  paid,  with  interest;  but  if 
the  vendor  is  in  fault,  and  did  know  or  should  have  known 
that  he  could  not  comply  with  the  contract,  or  if  having  title 
he  refuses  to  convey,  or  if  having  title  at  the  time  of  the 
agreement,  he  afterwards  disables  himself  from  conveying  to 

=  Davis  V.  GiUett,  52  N.  H.,  126  (1872);  Walker  v.  Ford,  5  Blackf.,  392. 
See,  ante,  Chap.  9;  also,  ante,  §  479,  et  seq. 

3  Sweem  v.  Steele,  10  la.,  374;  Freeman  v.  The  People,  54  111.,  153;  State 
of  Missouri  v.  Sandusky,  46  Mo.,  377;  Farrar  v.  Christy,  24  Id.,  453;  Farrar 
V.  U.  S.,  5  Pet.,  373;  Balsley  v.  Hoffman,  13  Pa.  St.,  603;  Clark  v.  Bush,  .3 
Cow.,  151;  Tyson  v.  Sanderson,  45  Ala.,  364;  Pierce  v.  Athey,  4  W.  Va.,  22. 
But  interest  on  the  penalty  is  now  generally  allowed,  on  the  ground  that 
when  there  is  a  breach  of  the  condition  of  a  penal  bond,  the  penalty  becomes 
in  law  a  debt  due,  and  the  obUgors  can  discharge  themselves  from  liabihty 
on  the  bond,  when  the  damage  equals  or  exceeds  the  penalty,  by  the  pay- 
ment of  the  penalty  alone;  and  if  it  be  not  paid  at  the  time  of  the  breach, 
it  should  bear  interest  imtil  paid.  Hughes  v.  Wickliff,  11  B.  Mon.,  202; 
Carter  v.  Thorn,  18  Id.,  613;  Brainard  v.  Jones,  18  N.  Y.,  35;  Carter  v. 
Carter,  4  Day.  30;  State  of  Missouri  v.  Sandusky,  supra;  McCoy  v.  Elder,  2 
Blackf.,  183.  But,  as  against  sureties,  the  liability  cannot  exceed  the  penalty. 
Clark  V.  Bush,  3  Cow.,  151;  Mower  v.  Kip,  6  Paige,  88;  Rayner  v.  Clark,  7 
Barb.,  581;  Dickerson  v.  Cook,  3  Duer.,  324. 


BONDS.  437 

Consequential  and  Kemote  Damages. 


the  covenantee,  by  a  sale  to  a  third  person;  or  if  at  the  time 
of  making  the  contract  he  knew  he  had  no  title,  the  vendee 
should  recover  substantial  damages,  including  compensation 
for  any  actual  loss,  as  by  the  increase  of  the  value  of  land  at 
the  time  the  contract  should  have  been  performed,  even 
though  it  exceed  the  penalty  named  in  the  bond." 

§  547.    Consequential  and  Remote  Damages.— In  an 

action  on  a  bond,  the  conditions  of  which  were  that  the 
defendant  would  "  fully  indemnify  and  save  harmless,"  the 
plaintiff,  "from  all  loss,  damage  and  harm  whatsoever  by 
reason  of  a  suit  for  infringement  of  a  patent,  by  selling  col- 
lars, which  "  the  plaintiff ''has  had,  or  may  hereafter  have 
of"  the  defendants,  "  and  to  pay  all  fair  and  reasonable  charges 
and  expenses  in  defending  said  suit,"  etc.;  it  was  held,  that 
the  plaintiff  was  entitled  to  damages  for  counsel  fees  in  the 
suit  for  an  infringement,  instituted  against  him;  for  deprecia- 
tion of  his  stock  withheld  from  sale  on  account  of  the  suit, 
and  reasonable  expenses  of  himself  and  counsel  in  their  efforts 
to  release  such  stock  from  the  attachment  therein;  but  not  for 
such  damage  as  was  not  the  natural  consequence  of  the  suit; 
as  loss  of  profits,  loss  of  credit,  etc' 

So,  where  one  has  been  prevented  from  completing  work  he 
had  undertaken  to  do,  by  an  attachment  upon  his  tools  and 
material,  he  is  entitled  to  recover  on  the  attachment  bond, 
consequential  damages  for  the  injuries  sustained;  and  it  is 
competent  for  him  to  show,  as  an  element  of  damages,  that 
when  his  work  was  suspended  by  the  attachment,  he  had  on 
hand  a  quantity  of  stone,  cut  and  dressed  for  use  in  the  com- 
pletion of  a  work,  which  was  not  of  equal  value  for  any  other 
purpose." 

4  Foley  V.  McEeegan,  4  la.,  1;  Sweem  v.  Steele,  5  Id.,  352;  Harrison  v. 
Wright,  13  East.,  343;  Sweem  v.  Steele,  10  la.,  374;  Martin  v.  Taylor.  1 
Wash.  C.  C,  1.     See,  also,  ante,  %%  134,  et  seq,  479,  et  seq. 

5  Ripley  v.  Moseley,  57  Me.,  76. 

«  Carpenter  v.  Stevenson,  6  Bush.  (Ky.),  259  (1869). 


438  THE  LAW  OF  DAMAGES. 


Common  Law  Practice— Statutory  Bonds— Attachment. 

§  548.  Common  Law  Practice.— The  common  law  prac- 
tice in  the  action  of  debt  on  a  bond,  is  to  enter  judgment  on 
the  bond  for  the  penalty,  with  an  order  to  issue  execution  only 
for  the  amount  of  damages  proved  to  have  been  sustained  by 
the  breach.* 

This  rule  is  a  technical  one,  and  rests  on  the  principle  that 
in  the  action  of  debt  the  penalty  is  the  debt,  and  that  the 
entire  penalty  is  demanded,  which  as  we  have  seen,  is  made 
practically  the  same  as  if  the  judgment  was  for  the  sum  really 
due,  by  the  order  of  the  court  that  execution  issue  for  only 
the  amount  shown  to  be  due. 

§  559.     Statutory  Bonds  —  Attachment— Bonds  are 

usually  provided  by  statute,  in  various  extraordinary  proceed- 
ings; such  as  on  the  issuing  of  writs  of  attachment,  injunc- 
tion, mandamus,  replevin,  and  on  appeals  in  various  cases. 

In  Iowa,  the  bond  in  attachment  cases  is  "conditioned,  that 
the  plaintiff  will  pay  all  damages  which  the  defendant  may 
sustain  by  reason  of  the  wrongful  suing  out  of  the  attach- 
ment; "  and  that,  "in  an  action  on  such  a  bond,  the  plaintiff 
therein  may  recover  if  he  shows  that  the  attachment  was 
wrongfully  sued  out,  and  that  there  was  no  reasonable  cause 
to  believe  the  ground  upon  wliich  the  same  was  issued  to  be 
true,  the  actual  damages  sustained,  and  reasonable  attorneys' 
fees,  to  be  fixed  by  the  court;  and  if  it  be  shown  that  such 
attachment  was  sued  out  maliciously,  he  may  recover  exem- 
plary damages."  *  *  *  Similar  statutes  have  been 
adopted  in  several  states.' 

8  Battey  v.  Holbrook,  11  Gray,  212;  NUson  v.  Gray,  2G.  Greene  (la.),  397; 
Cameron  V.  Boyle,  Id.,  154;  Sedg.  on  Dam.,  397.  And  this  is  the  practice 
in  Illinois.  Freeman  v.  The  People,  supra;  Toles  v.  Gale,  11  111.,  563; 
Erlinger  v.  The  People.  36  111.,  458.  So,  in  New  York,  The  West.  Bank  v. 
Sherwood.  29  Barb.,  383. 

9  Kentucky  Code.  §  224  (1867);  Kentucky  Gen.  Stat.,  (Bullock  &  Johnson, 
1873),  p.  141,  §  3;  CaUfornia  Code  Civ.  Prac,  §  359;  Georgia  Code,  §  3266; 
Rev.  Code  Alabama,  §  2931  (1867);  Statutes  of  Wis.  (1871),  Vol.  2,  p.  1470, 
§  7;  Code  of  Iowa  (1873),  §  2961. 


BONDS.  439 

statutory  Bonds— Attachment. 

It  was  held,  under  a  similar  but  former  statute  in  tlie  same 
state,  in  an  action  on  the  attachment  bond,  where  it  was 
charged  that  the  plaintiff  in  the  attachment  suit  acted  will- 
fully wrong,  and  exemplary  damages  were  demanded,  that  the 
true  issue  was  whether  the  plaintiff  in  the  attachment  suit  acted 
in  good  faith  and  with  reasonable  ground  for  belief  that  the 
allegations  for  the  attachment  were  true;  and  that  the  word 
"wrongfully"  meant  "unjustly,  injuriously,  tortiously." '" 
And,  it  was  further  held,  that  the  plaintiff  in  an  action  on  the 
attachment  bond  might  recover,  where  the  suing  out  was 
wrongful,  for  the  loss  and  expenses  incurred  in  defending  the 
attachment  suit;  for  losses  sustained  in  being  deprived  of  the 
property  attached;  and  for  injuries  occasioned  by  its  depreci- 
ation in  value  or  entire  loss;  and  that,  where  the  suing  out  of 
the  attachment  was  willfully  wrong,  exemplary  damages 
might  be  recovered.  But  that  injuries  to  credit,  character  or 
business,  were  too  remote  and  speculative  to  be  considered  in 
assessing  damages."  The  defendant's  damages  in  such  cases 
may  be  allowed  by  way  of  counter-claim,  or  cross  demand 
in  the  orig^inal  suit.'^ 


«>  Raver  v.  Webster,  3  la.,  502. 

"  Campbell  v.  Chamberlain,  10  la.,  337;  Pettit  v.  Mercer,  8  B.  Mon.,  51; 
Heath  v.  Lent,  1  Cal.,  410.  But,  see,  contra,  under  the  Ohio  statute,  Alex- 
ander v.  Jacoby,  23  Ohio  St.,  oo8,  where  the  court  held  it  proper  to  allow 
damages  for  interruption  of  business,  expenses  incurred  in  procuring-  the 
discharge  of  the  property,  etc.  But  damage  supposed  to  result  by  reason  of 
any  injury  to  the  reputation  of  the  goods,  caused  by  the  levy,  was  held  too 
remote. 

"  State  Bank  v.  Morris,  13  la.,  136;  Stadler  Bros.  &  Co.  v.  Parmalee  & 
Watts,  10  Id..  23;  Ripley  v.  Mosely,  57  Me.,  76."  In  Illinois  it  has  been 
held,  that  injury  to  credit  and  business  is  a  proper  element.  Lawrence  v. 
Hagerman,  56  lU.,  674.  See,  also,  in  Alabama  where  the  wrongful  attach- 
ment is  malicious.  McCullough  v.  Walton,  11  Ala.  (N.  S.),  492;  Kirksey  v. 
Jones,  7  Ala.  (N.  S.),  622;  Seay  v.  Greenwood,  21  Ala.,  493;  Spivey  v. 
McGehee,  Id.,  417.  It  would  seem  more  consistent  with  general  principles 
to  aUow  these  items  as  damages  where  the  attachment  proceeding  was 
malicious,  otherwise  not. 


440  THE  LAW  OF  DAMAGES. 


statutory  Bonds— Attachment. 


§  550.  So  in  Iowa,  in  an  action  on  the  attachment  bond, 
it  was  held  that  where  the  wrongful  suing  out  of  the  writ  was 
not  willful  and  malicious,  the  damages  recoverable  were 
restricted  to  the  immediate  consequences,  and  confined  to 
actual  compensation  for  wrongs  thereby  done.  And  that, 
in  such  a  case  where  the  attachment  was  levied  upon  a  house 
which  was  being  taken  to  pieces  for  removal  to  and  erection 
upon  other  premises,  the  plaintiff  could  not  recover  for  dama- 
ges caused  to  the  furniture,  removed  from  the  building  before 
the  levy  of  the  writ,  by  reason  of  its  being  exposed  in  conse- 
quence of  the  delay  caused  by  the  attachment,  in  rebuilding 
the  house  on  the  premises  to  which  it  was  to  be  removed,  and 
in  which  the  furniture  was  to  be  placed;  that  he  could 
not  recoV'Cr  the  additional  expense  in  building  a  new  house  on 
the  premises  on  which  he  intended  to  reconstruct  the  one 
levied  on;  and  that  he  could  not  recover  the  rental  value  of 
the  house  per  month  before  he  commenced  taking  it  down; 
nor  for  what  its  rent  would  be  worth  if  he  had  been  permitted 
to  remove  and  rebuild  it;  nor  for  the  loss  of  time  by  being 
deprived  of  the  use  of  the  house;  nor  for  attorney's  fees  paid 
by  the  plaintiff  for  defending  the  attachment  suit." 

§  551.  On  general  principles,  in  the  absence  of  statutory 
provisions  in  reference  to  the  bond,  or  liability  under  the 
same,  or  in  the  absence  of  a  bond  in  a  proper  form,  in  an 
action  thereon  for  the  wrongful  suing  out  of  the  same,  the 
motives  of  the  party  suing  it  out,  would  unquestionably  affect 
the  measure  of  damages,  and  the  extent  of  the  liability.  And 
it  is  held,  that  the  defendant  in  the  attachment  suit  may 
have  a  right  of  action  for  the  wrongful  suing  out  of  the 
attachment,  independent  of  the  bond.'*     And  the  costs  of  the 

'3  Plumb  V.  Woodmansee,  34  la.,  116.  See,  also,  Bennett  v.  Brown,  31 
Barb.,  158;  20  N.  Y.,  99;  SHsbe  v.  Lucas,  53  111.,  479;  Collins  v.  Sinclair, 
51  Id.,  328;  Myers  v.  Farrali,  47  Miss.,  281  (1872). 

'4  Stadler  v.  Parmlee,  10  la.,  23;  The  State  v.  Thomas,  19  Mo.,  613;  Pet- 
tit  V.  Mercer,  8  B.  Mon.,  51. 


BONDS.  441 

Mitigation  of  Damages. 


original  suit  are  generally  recoverable  as  damages  on  the 
bond.'^ 

§  552.  And  where  the  attachment  was  wrongfully  sued 
out,  and  there  was  no  probable  cause  for  believing  the  grounds 
upon  which  the  same  was  issued  were  true,  the  plaintiff  in  an 
action  on  the  bond  may  recover  reasonable  attorney's  fees; 
and  the  destruction  of  business  by  the  taking  of  goods  may 
be  a  proper  element  of  damages,  when  the  destruction  or  loss 
is  the  natural  result  of  the  trespass."  And  where  a  party  by 
reason  of  the  attachment  is  prevented  from  performing  a  con- 
tract previously  made,  and  material  prepared  to  be  used  for 
that  purpose  is  depreciated  in  value,  this  is  a  proper  element 
of  damage.'* 

§553.  Mitigation  of  Damages.— In  an  action  for  the 
unlawful  seizure  of  personal  property,  under  a  void  attachment, 
the  defendant  may  show  in  mitigation  of  damages,  that  a  por- 
tion of  the  proceeds  of  the  property  attached  were  applied  in 
payment  of  the  arears  of  rent  due  the  owner  of  the  premises 
occupied  by  the  plaintiff,  and  in  which  the  property  seized 
was  stored,  and  to  secure  which  the  attachment  was  sued  out." 

§554.  And  where  the  plaintiff  in  the  original  action  in 
which  he  obtained  an  attachment  had  been  non-suited,  he  was 
permitted  to  show  in  an  action  on  the  attachment  bond,  that 
the  property  thus  attached  had  been  re-attached  in  a  subse- 
quent action  by  him,  which  had  been  prosecuted  to  judgment, 

's  Dunning  V.  Humphrey,  24  Wend.,  31;  Schuyler  v.  Sylvester,  4  Dutch. 
(N.  J.),  487;  Hayden  v.  Sample.  10  Mo.,  215. 

17  ]\Ioore  V.  Schultz,  31  Md.,  418.  So,  for  the  depreciation  of  stock  while 
withheld  from  sale  on  account  of  the  attachment.  Ripley  v.  Mosely,  57 
Me.,  76. 

«8  Carpenter  v.  Stevenson,  6  Bush,  (Ky.),  259 

•5  Wanamaker  v.  Bowers,  36  Md.,  42;  (1872).  See,  also,  where  the  attach- 
ing creditor  had  probable  cause  to  believe  the  grouds  on  which  the  attach- 
ment issued  were  true;  Metcalf  v.  Young,  43  Ala.  (N.  S.),  643;  OflFutt  v. 
Edwards,  9  Rob.  (La.),  90;  State  v.  Thomas,  19  Mo.,  613;  Morse  v.  Withen- 
burgh,  13  La.  An.,  22. 


442  THE  LAW  OF  DAMAGES. 


Injunction  Bonds— Elements  of  Damages  on. 

and  under  which  the  property  had  been  sold.'"  So,  the  justice 
of  the  claim  in  the  attachment  suit  is  held,  in  Louisiana,  to  go 
in  mitigation  of  exemplary  damages." 

§  555.    Injunction  Bonds— Elements  of  Damages  on. 

— These  statutory  bonds  usually  provide  for  the  payment  of  all 
damages  which  may  be  adjudged  against  the  plaintiff  by  rea- 
son of  the  injunction.  The  general  principles,  we  have  noticed 
as  applicable  to  suits  on  attachment  bonds,  are  alike  applicable 
to  suits  on  injunction  and  replevin  bonds. 

In  an  action  upon  an  injunction  bond,  for  damages  caused  by 
wrongfully  suing  out  the  writ,  the  plaintiff  may  not  only  have 
his  ordinary  and  actual  damages  that  resulted  from  the  injunc- 
tion, but  in  addition  thereto  a  reasonable  amount  as  attor- 
ney's fees,  paid  or  incurred  in  procuring  a  dissolution  of  the 
injunction."* 

Where  the  injunction  was  only  auxiliary  to  the  suit,  attor- 
ney's fees  cannot  be  recovered  for  defending  the  entire  action, 
but  only  for  procuring  the  dissolution.  And  the  right  to  recover 
attorney's  fees  is  not  confined  to  cases  where  the  injunction  is 
dissolved  on  motion."  But  an  action  for  damages  caused  by 
an  injunction  cannot  be  maintained  before  its  dissolution." 

»°Earl  V.  Spooner,  3  Den.  (N.  Y.),  246. 

"^  Cox  V.  Robinson,  2  Rob.  (La.),  313.  See,  as  to  damag'es  on  appeal, 
United  States  v.  Addison,  6  Wallace,  291.  See,  also,  White  v.  French,  15 
Gray,  339. 

=4  Andrews  v.  Glenville  Wollen  Co.,  50  N.  Y.,  282;  Corcoran  v.  Judson,  24 
N.  Y.,  106.  And,  see  other  authorities  cited  in  connection  with  attorney's 
fees  as  damages  on  attachments,  supra.  Also,  Behrens  v.  McKinzie,  23  la., 
333;  Edwards  V.  Bodme,  11  Paige  224;  Coates  v.  Coates,  1  Duer.,  664;  Aid- 
rich  V.  Reynolds,  1  Barb.  Ch.,  613;  Ah  Thaie  v.  Quan  Wan,  3  Cal.,  216; 
Prader  v.  Grim,  28  Id.,  511;  Garrett  v.  Logan,  19  Ala.,  344;  Derry  Bank  v. 
Heath,  45  N.  H.,  524;  Ryan  v.  Anderson,  25  111.,  372;  Collins  v.  Sinclair,  51 
lU.,  328;  McCrea  v.  Brown,  12  La.  An.,  181;  Brown  v.  Jones,  5  Nev.,  374; 
Misnerv.  Bullard,  43  lU.,  470. 

»s  Langworthy  v.  McKelvey,  25  la.,  48. 

■^ Thompson  v.  McNair,  64  N.  C,  448  (1870);  Leavitt  v.  Dabney  9  Abb., 
Pr.  (N.  S.),  373;  Gray  v.  Veirs,  33  Md.,  159,  (1870);  Sturgis  v.  Knapp,  33  Vt, 
486;  Cowdore  v.  Martin,  17  Mo.,  41.    See,  also,  High  on  Inj.,  557.    So  the 


BONDS.  443 

Injunction  Bonds— Elements  of  Damages  on. 

In  Alabama,  Louisiana  and  Illinois,  counsel  fees,  necessarily 
incurred,  though  not  paid,  and  in  Kentucky  if  they  have 
been  liquidated,  and  in  California  where  they  have  been  paid, 
may  be  recovered  as  damages."^*  And  if  the  injunction  suit  is 
dismissed,  this  amounts  to  a  final  decision  that  plaintiff  was 
not  entitled  to  the  injunction,  and  the  defendant  is  entitled  to 
the  damages  sustained  thereby.^' 

§  557.  Where  execution  on  a  judgment  is  restrained,  and 
it  appears  that  the  amount  of  the  judgment  and  interest 
exceeds  the  penalty  of  the  judgment  bond,  a  court  of  equity, 
it  seems,  will  provide  a  remedy,  and  allow  interest  on  the 
penalty  of  such  bond  when  it  becomes  necessary  to  indemnify 
the  party  injured  by  the  injunction.'" 

If  an  injunction  restraining  the  collection  of  a  judgment 
is  dissolved,  the  usual  rule  is  to  allow  as  damages  the  amount 
due  thereon."  And  large  damages  were  held  proper  where  the 
debtor  enjoined  the  satisfaction  of  a  judgment  against  him, 
on  account  of  a  small  amount  claimed  to  be  due  him  from 
the  creditor,  and  which  bore  an  insignificant  proportion  to  the 

plaintiff  is  entitled  to  recover  for  loss  of  time  occasioned  by  the  injunction  at 
the  usual  rates  of  wages,  provided  he  used  diligence  to  secure  other  employ- 
ment; but  in  the  absence  of  such  proof,  a  judgment  in  the  plaintiff's  favor 
therefor  should  be  reversed.    Muller  v.  Fern,  35  la.,  420. 

=8  Garrett  v.  Logan.  19  Ala.  (N.  S.),  344;  Miller  v.  Garrett,  35  Id.,  96; 
McKeav.  Brown,  12  La.  An.,  181;  Shultz  v.  Morrison,  3  Mete.  (Ky.),  98; 
Steele  v.  Thatcher,  56  lU.,  257,  (1870).  See,  also,  Campbell  v.  Metcalf, 
1  T.  Mon.  379,  (1871);  Trader  v.  Grimm,  28  Cal,  11;  Wilson  v.  McEvoy,  25 
Id.,  169;  Deny  Bank  V.  Heath,  45  N.  H.,  524.  But  counsel  fees  are  not 
allowed  as  damages  in  such  cases  in  South  Carolina.  See,  Gadson  v.  Bank, 
5  Rich.,  336. 

=9  Pacific  Mail  S.  S.  Co.  v.  Luting,  7  Abb.  (N.  Y.),  Pr.  (N.  S.),  37.  It 
seems  that  it  is  not  the  practice  in  the  United  States  Courts,  to  allow  counsel 
fees  as  damages,  on  the  dissolution  of  an  injunction.  Oelrichs  v.  Spain  15 
Wall.,  211. 

30  Marshall  V.  Winter,  43  Miss.,  666,  (1870). 

3'  Southerland  v.  Crawford,  2  J.  J.  Mar.,  370.  Interest  and  costs  should 
also  be  included  Washington  v.  Parks,  6  Leigh.,  581;  Gist  v.  McGuire,  4 
Har.  &  J.,  9;  WalUs  v.  Dilley,  7  Md.,  237. 


M4:  THE  LAW  OF  DAMAGES. 

iDjuaction  Bonds— Elements  of  Damages  on. 

amount  of  the  judgment,^'  But  no  damages  will  be  allowed 
On  the  dissolution  of  an  injunction  of  a  judgment  for  pur- 
chase money,  issued  on  the  ground  of  a  defect  of  title,  where 
the  injunction  is  dissolved  on  the  ground  that  the  title  was 
subsequently  perfected." 

And  it  is  held,  that  independant  of  statutes,  a  court  of 
equity  has  authority  upon  the  dissolution  of  an  injunction,  to 
ascertain  the  damages  sustained  thereby,  and  decree  the  pay- 
ment of  the  same;  but  this  would  not  impair  any  remedy  on 
the  bond.^*  But  the  damages  awarded  on  the  bond  cannot 
generally  exceed  the  penalty;"  and  nothing,  in  the  absence  of 
fraud  or  willful  wrong,  will  authorize  the  assessment  of  more 
damages  than  sufficient  to  indemnify  for  the  losses  sustained, 
and  which  must  be  the  direct  natural  and  proximate  result  of 
the  injunction." 

In  an  action  on  a  bond,  where  the  plaintiff  had  been  wrong- 
fully restrained,  in  the  spring  of  the  year,  from  taking  posses- 
sion of  a  farm,  it  was  held,  that  the  damages  were  not  confined 
to  the  value  of  the  use  of  the  land  during  the  continuance  of 
the  injunction,  but  that  the  plaintiff  might  recover  the  whole 
loss  sustained  by  being  kept  out  of  the  possession,  including  the 
loss  of  the  subsequent  crop.' 

§  559.  In  some  of  the  states  where  the  collection  of  money 
is  restrained,  interest  is  by  statute  allowed  as  damages,  if  the 

3*  Barrow  v.  Robichaux,  15  La.  An.,  70. 

33  Fishback  v.  WilUams,  3  Bibb.  (Ky),  342;  McCoy  v.  Chiles,  5  Mon.,  259; 
Lampton  v.  Usher,  7  B.  Mon.,  57;  Reeves  v.  Dickey,  10  Gratt.,  1-38. 

34  Sturgis  V.  Knapp,  33  Vt.,  486;  Edwards  v.  Pope,  3  Scam.,  465;  Roberts 
V.  Dust,  4  Ohio  St.,  502.  But  this  authority  has  been  since  questioned  in 
Illinois.    See,  Phelps  v.  Poster,  18  lU.,  309. 

35  Sturgis  V.  Knapp,  33  Vt.,  486;  Day  v.  Martin,  7  La.,  365. 

3«  Brown  v.  Jones,  5  Nev.,  374;  Collins  v.  Sinclair,  51  111.,  328;  Stewart  v. 
State,  20  Md.,  97;  Morgan  v.  Negley,  53  Pa.  St.,  153;  Burgen  v.  Sharer,  14 
B.  Mon.,  497;  Kennedy  v.  Hammond,  16  Mo.,  341. 

«  Edwards  v.  Edwaxds,  31  lU.,  474. 


BONDS.  445 

Delivery,  Indemnifying,  and  Other  Bonds. 

injunction  is  improperly  sued  out.*  And  in  the  absence  of 
statutes,  fixing  the  extent  of  liability,  damages  in  the  absence 
of  malice  in  suing  out  the  writ,  are  measured  by  simple  com- 
pensation for  loss  sustained;  such  as  loss  or  depreciation  of 
the  value  of  goods  restrained  from  sale;*  damages  by  the 
delay  of  collections  of  money,  counsel  fees  paid,  and  expenses 
incurred  in  the  injunction  suit,  as  we  have  before  seen.  For 
the  rule  of  damages  on  bonds  in  other  and  special  cases,  see 
authorities  cited  in  the  annexed  note.° 

§  560.    Delivery,  Indemnifying,  cand  other  Bonds.— 

The  general  principles  of  the  law  of  damages  also  apply  to 
delivery,  indemnifying,  and  other  bonds,  provided  for  by- 
statute,  in  cases   of  attachments,  executions,  replevins   and 

*Pas.  Dig.,  Art.  3935;  Gault  v.  Goldwait,  34  Tex.,  104.  See,  also,  Gib- 
son, V.  O'Connell.  30  Id.,  684;  Wag.  Mo.  Stat..  1030.  See  general  rule  of 
damages  in  Missouri,  Kenedy  v.  Hammond,  16  Mo.,  341;  City  of  St.  Louis 
V.  Alexander,  23  Id.,  483;  Bircher  v.  Parker,  40  Id.,  118. 

s  Barton  v.  Fisk,  30  N.  Y.,  166;  Meysenburg  v.  Schlieper,  48  Mo.,  426. 

«  Brown  v.  Tyler,  M  Tex.,  168  (1871);  Wintzel  v.  Robinson,  23  La.'  An., 
451  (1871);  Moulton  v.  Richardson,  49  N.H.,  75;  Allen  v.  Brown,  5  Lansing 
(N.  Y.),  511;  Ti-ustees  of  Tamaroa  v.  Southern  111.,  etc.  University,  54  111 
334  (1870);  Peerce  v.  Attery.  4  W.  Va.,  22  (1870);  CoUins  v.  Sinclair,'  51  lU.'i 
328;  Silsbe  v.  Lucas,  53  Id.;  Hamilton  v.  Steele,  32  Md.,  348.  When  a 
mortgagor  obtains  an  injunction  to  restrain  the  mortgagee  from  seUing  the 
mortgaged  premises  under  a  decree  of  foreclosure,  and  pending  the  injunc- 
tion the  mortgagor  removes  emblements  from  the  premises,  the  value  of  the 
emblements  may  be  included  in  the  damages  awarded  to  the  mortgagee 
upon  the  dissolution  of  the  injunction,  if  the  security  has  been  thereby 
impaired.  Aldrich  v.  Reynolds,  1  Barb.,  Ch.  613.  Nor  is  the  want  of  juris- 
diction of  the  court  over  the  subject  matter,  a  defense  to  an  action  for  dam- 
ages sustamed  by  the  injunction.  Cumberland  v.  Hoffman,  29  Barb..  16 
T;\niere  a  stranger  to  the  proceedings  enjoins  the  sale  of  property  claimed 
by  him,  under  an  execution  against  a  third  person,  leaving  the  execution  in 
full  force  as  to  the  debtor's  property,  the  fuU  amount  due  on  the  execution 
should  not  be  aUowed  as  damages  against  liim,  on  a  dissolution  of  the 
injunction.  Hord  v.  Trimbale,  1  Lit..  413;  High  on  Inj.,  §  979.  But  dam- 
ages cannot  be  recovered  in  an  action  on  the  bond.  untU  the  final  determina- 
tion of  the  cause  in  wliich  the  injunction  is  issued.  Gray  v  Veirs  33  Md 
159  See  Jenkins  v.  Parkhill,  25  Ind.,  473,  as  to  mitigation;  Riddesbarger 
v.  McDaniel,  38  Mo.,  138.  * 


446  THE  LAW  OF  DAMAGES. 


Delivery,  Indemnifying,  and  Other  Bonds. 


appeals.  The  limit  of  damages  on  these  bonds,  generally, 
being  the  amount  of  damages  sustained,  not  exceeding  the 
penalty.  If  the  bond  is  given  to  release  property  on  attach- 
ment or  replevin,  and  the  property  is  taken  by  the  defendant, 
and  he  fails  to  deliver  it  according  to  the  terms  of  the  bond, 
the  measure  of  damages  is  usually  the  amount  of  the  judg- 
ment obtained  in  the  original  suit,  and  costs,  as  provided  by 
the  bond.  The  subject  of  liability  on  official  bonds,  will 
hereafter  be  considered  in  treating  of  officers. 


Iiq"SirRA:N'CE.  447 


Damages  on  Policies  of  Insurance. 


CHAPTEE  XIX. 


DAMAGES  ON  POLICIES  OF  INSUKAKCE. 

Section  561.  Definition— Division  of  the  Subject. 

562.  Insurance  of  Ships  and  Cargoes. 

563.  General  Bule  of  Damages. 

564.  Mode  of  Estimating  the  Value  of  the  Thing  Insured  on 

Open  Policy. 

565.  In  Case  of  Partial  Loss  on  an  Open  Policy. 

566.  Valued  Policies— Abandonment. 

567.  Mode  of  Estimating  Damages  on. 

568.  General  Average. 

569.  Underwriters  may  Repair. 

570.  Insurance  of  Freight  and  Profits. 

571.  Measure  of  Damages  on. 

572.  Application  of  Maxim  Causa  Proxima,  etc. 

573.  Fire  Insurance— Damages. 

574.  Lessee's  Interest. 

575.  Mortgagee's  Interest. 

576.  Bailees  and  Trustees. 

577.  Vendor  on  a  Contract  of  Sale. 

578.  Application  of  Maxim  Causa  Proxima,  etc.,  to  Fire  Insur- 

ance. 

579.  Damages  Limited  by  Contract. 

580.  HebuUding  and  Repairing. 

581.  Double  Insurance. 

586.  Subrogation. 

587.  Life  Insurance. 

588.  Damages  on  a  Life  Policy. 
689.  Creditor's  Interest. 


us  THE  LAW  OF  DAMAGES. 


Definition -Division  of  Subject-Marine  Insurance-Slilps  and  Cargoes,  etc. 


§561.  Definition— Division  of  the  Subject.—"  Insur- 
ance is  a  contract  whereby  one  for  a  consideration,  undertakes 
to  compensate  another  if  he  shall  suflfer  loss.'"  There  are 
three  classes  of  insurance  which  we  propose  to  consider  in 
reference  to  the  subject  of  damages,  viz:  marine,  fire  and 
life  insurance. 

§  502.  Marine  Insurance— Ships  and  Cargoes.— 
Marine  insurance  has  been  defined  as  "  a  contract  whereby  one 
party  for  a  stipulated  premium  undertakes  to  indemnify  the 
other  against  certain  perils  or  sea-risks,  to  which  his  ship, 
freight  or  cargo,  or  some  of  them,  may  be  exposed  during  a 
certain  voyage  or  a  fixed  period  of  time.'"  It  is  not  properly 
within  the  plan  of  this  treatise,  to  consider  the  subject  of 
insurance  generally;  but  only  the  subject  of  damages  growing 
out  of  insurance.  Many  special  treatises  are  devoted  to  a 
general  treatment  of  the  law  of  insurance,  and  to  w^hich  the 
student  is  referred.^ 

§  5G3.  General  Rule  of  Damages  .—The  general  rule 
of  damages  relating  to  insurance  is,  that  the  insured  may 
recover  the  loss  actually  sustained — or  a  full  indemnity.  If 
the  loss  of  the  insured  property  is  total,  the  insured  should 
recover  its  full  value,  where  there  is  no  provision  in  the  policy 
stipulating  for  a  less  amount.  In  case  of  such  a  provision, 
damages  cannot  exceed  the  amount  insured.  If  the  loss  is 
partial,  the  amount  of  the  loss  sustained,  subject  to  the  quali- 
fication above  stated,  should  be  allowed.  These  principles  are 
universally  recognized ." 

'  May  on  Insurance,  1.  Mr.  Justice  Lawrence  defines  it  as  follows:  "  In- 
surance is  a  contract  by  which  the  one  party,  in  consideration  of  a  price 
paid  to  him,  adequate  to  the  risk,  becomes  security  to  the  other  that  he  shall 
not  suffer  loss,  prejudice  or  damage,  by  the  happening  of  the  perils  speci- 
fied, to  certain  things  which  may  be  exposed  to  them. ' '  Lucena  v.  Crawford, 
2  Bos.  «&  Pull.,  300. 

=  3  Kent's  Com.,  251. 

3  Parsons  on  Marine  Insurance;  Pmllips  on  Insurance;  Duer  on  Marine 
Insurance;  May  on  Insurance  (1873). 

*  See  authorities  last  cited. 


INSUEAKCE.  449 


Mode  of  Estimating  Value  of  Thing  Insured  on  Open  Policy. 

§  564.  Mode  of  Estimating  the  Value  of  the  thing 
Insured  on  an  open  Policy.— The  mode  of  estimating  the 
value  of  a  vessel  on  an  open  policy,  that  is  a  policy  in  which 
the  value  of  the  property  has  not  been  fixed,  in  case  of  a  total 
loss  of  a  vessel,  is  to  determine  the  value  of  the  same  at  the 
time  of  the  commencement  of  the  risk,  or  at  the  port  of 
departure,  making  reasonable  allowance  for  wear  and  tear  on 
the  voyage  up  to  the  time  of  the  loss.* 

And  in  reference  to  the  cargo,  the  insured  may  recover  the 
market  value  of  the  same  at  the  time  the  risk  commenced, 
together  with  the  premium  of  insurance,  and  the  expenses 
necessarily  incurred  in  the  shipment  of  the  same." 

It  has  recently  been  held  in  Massachusetts  that,  in  estima- 
ting a  loss  under  an  open  policy  of  marine  insurance,  evidence 
of  the  usage  at  a  particular  port  is  inadmissible  to  vary  the 
rule,  that  the  damages  are  to  be  based  upon  the  market  value 
of  the  goods  at  the  inception  of  the  risk.  And  it  was  further 
held,  that  where  the  policy  provides  that  in  case  of  loss,  all 
sums  due  the  insurers  when  they  became  liable  for  the  loss, 
should  be  first  deducted,  the  amount  due  therefor,  and  all 
sums  coming  due,  should  be  paid  or  satisfactorily  secured  before 
payment  of  the  loss;  that  the  amounts  due  on  premium  notes 
from  the  insured  should  be  deducted,  if  due  at  the  time  of  trial, 
although  they  were  not  due  at  the  commencement  of  the  suit; 
and  that  the  loss,  being  payable  in  gold  and  the  notes  in  cur- 
rency, the  value  of  the  currency  in  gold,  at  the  time  they  fell 
due,  should  be  ascertained,  and  such  value  deducted  from  the 
amount  of  the  loss.'  The  doctrine  of  one-third  new  for  old 
does  not  apply  in  case  of  a  total  loss.'     A  rule  of  constructive 

5  3  Kent's  Com.,  243. 

«  2  PhiUps  on  Insurance,  §§  1221,  1222,  1229,  1231;  Carson  v.  The  Marine 
Ins.  Co.,  2.  Wash.  C.  C.  R.,  468;  Cox  v.  The  Charleston  Fire  and  Marine 
Ins.  Co.,  3  Rich.,  331;  Warren  v.  Franklin  Ins.  Co.,  104  Mass.,  518;  1 
Arnold  on  Marine  Insurance,  (3  ed.,  by  Machlacklan,)  pp.  291,  309. 

7  Wan-en  v.  Franklin  Ins.  Co.,  104  Mass.,  518  (1870). 

8  3  Kent's  Com.  331;  Peele  v.  The  Merchants  Ins.  Co.,  3  Mason,  28. 

29 


450  THE  LAW  OF  DAMAGES. 

In  Case  of  Partial  Loss  on  Open  Policy. 

total  loss  generally  prevails  on  the  continent  of  Europe,  as 
well  as  in  this  country,  by  which  in  case  of  loss,  if  the  dam- 
age is  more  than  one-half  the  value  of  the  vessel,  the  insured 
may  abandon  her  and  claim  as  for  a  total  loss."  So,  it  is  held 
that  total  physical  loss  of  the  goods,  is  not  necessary,  to  entitle 
the  owners  of  merchandise,  insured  against  perils  of  the  sea 
"free  of  particular  average  only,"  to  recover  as  for  a  total 
loss,  if  the  right  to  abandon  is  exercised  during  the  existence 
of  the  peril  and  there  is  a  total  loss  of  value  to  the  owners.' 
In  some  states  it  seems,  the  rule  prevails  of  deducting  one- 
third  new  for  old,  in  estimating  a  total  loss."  But,  the  gen- 
eral American  rule,  as  we  have  seen,  allows  an  abandonment 
and  recovery  as  for  a  total  loss,  where  the  damage  is  more 
than  half  the  value  of  the  vessel,  and  this  is  the  rule  in 
some  of  the  maritime  States  of  Europe.  But  the  English 
rule  prevents  abandonment,  and  recovery  as  for  a  total  loss, 
unless  the  vessel  is  damaged  to  such  an  extent  that  the  repairs 
at  the  place  where  the  vessel  is,  would  amount  to  the  value 
of  the  vessel  when  repaired.' 

§  565.    In  Case  of  Partial  Loss  on  an  Open  Policy.— 

We  have  stated  the  rule   of  damages,   on  a  loss   of  insured 

*°3  Kent's  Com.,  318,  et  seq.;  Lockwood  v.  Sangamo  Ins.  Co.,  46  Mo.,  71. 
But,  where  a  vessel  whose  cargo  was  insured,  arrived  at  her  port  of  destina- 
tion with  a  loss  of  more  than  one-half  of  her  cargo,  but  a  part  of  her  cargo 
had  been  delivered  at  that  port,  it  was  held  that  the  assured  could  not  claim 
an  abandonment.  Nor  could  a  loss  of  part  of  the  cargo  afterwards  at  a  port 
of  detention  be  made  a  constructive  total  loss  by  abandonment,  however 
large  that  portion  might  be.  Merchants  Mut.  Ins.  Co.  v.  New  Orleans  Mut. 
Ins.  Co.,  24  La.  An.,  305. 

'WaUerstein  v.  Columbian  Ins.  Co.,  44  N.  Y.,  204.  See  further  as  to 
what  constitutes  a  case  for  recovery,  as  for  a  total  loss  of  freight.  Parsons 
V.  Manufacturers'  Ins.  Co.,  82  Mass.,  463;  Hugg  v.  Augusta  Ins.  Co.,  Taney, 
159. 

'Heebner  v.  Eagle  Ins.  Co.,  10  Gray,  131;  Fielder  v.  N.  Y.  Ins.  Co.,  6 
Duer,  282. 

3  Irving  V.  Manning,  1  H.  L.  C,  287;  Moss  v.  Smith,  9  C.  B.,  94;  Knight 
v  Faith,  15  Q.  B.,  649;  Grainger  v.  Martin,  2  B.  &S.,  456;  4  B.  &  S.,  9;  Kemp 
V.  HalUday,  6  B.  &  S..  723. 


msuRAisrcE.  451 


Valued  Policies— Abandonment. 


property,  to  be  that  of  full  compensation.  But,  in  determin- 
ing this  amount,  certain  arbitrary  rules  have  been  adopted. 
Thus,  in  case  of  a  partial  loss  of  a  ship,  there  is  an  arbitrary 
rule  of  allowance  to  the  insurer  of  one  third,  new  for  old. 
The  rule  and  the  reason  for  it,  is  thus  stated  by  Mr.  Justice 
Story:  "The  assurred  shall  pay  one-third  part  of  the  expense 
of  labor  and  materials  necessary  to  make  the  repairs  and 
shall  recover  only  two-thirds  of  the  underwriters,  it  beino- 
considered,  that  in  general,  tlie  ship  is  better  by  the  amount 
of  one-tliird  of  the  expense  of  repairs."  " 

And,  although  in  England,  it  lias  been  held,  that  an  excep- 
tion to  the  rule  should  be  made  where  the  ship  is  new  and  the 
loss  occurs  on  her  first  voyage,"  no  such  exception  is  made  in 
the  United  States.'^ 

§  566.  Valued  Policies—  Abandonment.—  "A  valued 
policy,  is  where  a  value  has  been  set  upon  the  ship  or  goods 
insured,  and  inserted  in  the  policy  in  the  nature  of  liquidated 
damages."  '*  Where  the  value  of  the  property  has  thus  been 
agreed  upon,  it  is  at  least  presumptive  evidence  of  its  true 
value,  and  in  the  absence  of  fraud,  conchisive  evidence  between 
the  parties  to  the  agreement.'^ 

The  general  principles  of  the  law  of  abandonment,  are  thus 
clearly  and  concisely  stated  by  Mr.  Story:  "The  right  of  aban- 
donment has  been  admitted  to  exist  where  there  is  a  forcible 
dispossession  or  ouster  of  the  owner  of  a  ship,  as  in  case  of 
capture;  where  there  is  amoral  restraint  or  detention  which 

"  Story,  J.,  in  Peele  v.  The  Merchants'  Ins.  Co.,  3  Mason,  supra.  See, 
also,  Brinley  v.  National  Ins.  Co.,  11  Met.,  195.  Patapsco  Ins.  Co.  v.  South- 
gate,  5  Pet.,  (U.  S.)  604. 

'=>  Perie  v.  Steele,  8  Carr.  &  Payne,  200. 

'3  Crock  V.  Marine  Fire  Ins.  Co.,  21  Pick.,  456;  Nichols  v.  Marine  Fire  & 
Mar.  Ins.  Co.,  11  Mass.,  253. 

'^3  Kent's  Com.,  272. 

'5  Irving  V.  Manning,  6  C.  B.,  393,  1  H.  L.  C,  237;  Lamar  Ins.,  Co.  v. 
McGlashen,  54  111.,  513;  Shaw  v.  Fellon,  2  East.,  109;  Ld.  Abinger,  in  Young  v. 
Turing,  2  M.  &  G.,  593;  Nimick  v.  Holmes,  25  Pa.  St.,  366. 


452  THE  LAW  OF  DAMAGES. 


Mode  of  Estimating  Damages. 


deprives  the  owner  of  the  free  use  of  the  ship,  as  in  case  of  embar- 
goes, blockades  and  arrests  by  sovereign  authority;  where  there 
is  a  present  loss  of  the  physical  possession  and  use  of  the  ship, 
as  in  case  of  submersion;  where  there  is  a  total  loss  of  the 
ship  for  the  voyage  as  in  case  of  shipwreck,  so  that  the  ship 
cannot  be  repaired  for  the  voyage  in  the  port  where  the  disas- 
ter happens;  and  lastly  where  the  injury  is  so  extensive  that 
by  reason  of  it  the  ship  is  useless,  and  yet  the  necessary  repairs 
would  exceed  her  present  value.  *  '"^  *  In  such 
a  case  the  law  deems  the  ship,  though  having  a  physical 
existence,  as  ceasing  to  exist  for  purposes  of  utility,  and  there- 
fore subjects  her  to  be  treated  as  lost."  " 

§567.  Mode  of  Estimating  Damages.  —  The  measure 
of  damages  on  a  valued  policy  in  case  of  total  loss,  is  the 
value  of  the  property  thus  agreed  upon.  But  in  case  of  a 
partial  loss  of  goods,  the  damages  are  in  the  proportion  to  the 
whole  value,  which  the  lost  goods  bore  to  the  whole,  at  the 
commencement  of  the  risk.  In  case  of  injury  to  the  cargo 
merely,  and  not  a  total  loss  of  any  specific  portion  of  it,  the 
amount  payable  by  the  insurer  should  bear  the  same  propor- 
tion to  the  whole  value  of  the  cargo  as  agreed  upon,  which 
the  value  of  the  cargo  at  the  port  of  destination  if  it  had  not 
been  injured,  would  have  borne  to  its  actual  value  in  its  dam- 
aged state."  The  basis  of  the  valuation  in  case  either  of  total  or 
partial  loss,  being  the  valuation  fixed  in  the  policy.'* 

And  where  the  value  of  grain  was  fixed  in  the  policy  at  the 
sum  insured,  and  there  was  a  partial  loss  of  the  same,  and  it 
reached  the  port  of  destination  in  a  damaged  condition,  it 
was  held,  that  the  value  thus  fixed  was  the  standard  of  liability, 
and  not  the  value  of  the  grain  in  the  market;  and  that  reason- 

'6  Peele  v.  Merchants'  Ins.  Co.,  3  Mason,  27.  See,  also,  American  Ins.  Co. 
V.  Ogden,  15  Wend.,  532. 

'7  3  Kent's  Com.,  275;  Benecke  on  Indemnity,  146;  2  Phillips  on  Ins.,  §1221, 
et  seq.    Marshall  on  Ins.,  502,  et  seq.    Usher  v.  Noble,  12  East.,  639. 

j8  Irving  v.  Manning,  supra;  3  Kent's  Com.,  274. 


INSURANCE.  453 


General  Average— Underwriters  may  Kepalr. 


able  and  proper  expenses  incurred  in  handling  and  disposing 
of  the  grain,  such  as  survey,  inspection,  and  sale  at  auction, 
"were  proper  elements  of  damages.'" 

§  568.  General  Average.  The  doctrine  of  general  aver- 
age may  affect  the  amount  of  damages  recoverable  on  marine 
policies.  Where  such  a  claim  is  proper,  the  whole  property 
and  interest  at  risk  must  contribute  to  the  particular  loss  in 
the  proportions  provided  by  law;  and  arbitrary  rules  are 
sometimes  adopted  in  determining  the  values  of  the  diflPerent 
kinds  of  property  or  interests  at  risk  and  subject  to  general 
average.'"  If  the  ship  is  valued  in  the  policy,  this  may  be 
taken  as  its  value  at  the  time,  in  the  absence  of  any  better 
evidence,  from  which  should  be  deducted  a  reasonable  amount 
for  deterioration  since  the  valuation." 

§  569.    The  Underwriters  may   Repair.— It  is  the 

privilege  of  the  underwriters,  in  case  of  abandonment,  to 
repair  the  vessel  within  a  reasonable  time.  And  if  the  vessel 
is  restored  in  as  good  a  condition  as  she  was  in  before  the 
injury  and  within  a  reasonable  time,  the  assured  is  bound  to 
receive   her  in  lieu  of  any  claim  for  damages  on  the  policy. 

'9  Lamar  Ins.  Co.  v.  McGlaslien,  54  111.,  513. 

=0  Moss  V.  Smith,  9  C.  B.,  94. 

"  Star  of  Hope,  9  Wall.,  203  (1869).  In  this  case  it  was  held,  that  although 
the  ship  was  totally  lost  by  stranding,  yet  if  it  was  voluntarily  stranded  for 
the  common  safety,  and  the  stranding  resulted  in  saving  the  cargo,  the  case 
was  one  for  general  average,  that  if  the  will  of  man  in  some  degree  contri- 
buted to  the  stranding,  it  was  sufficient  to  constitute  it  a  voluntary  act  within 
the  meaning  of  commercial  law.  And  where  the  bows  of  the  vessel  were 
cut  by  ice,  and  there  was  danger  that  both  the  vessel  and  cargo  would  go 
down  in  deep  water,  and  to  avoid  this  the  master  stranded  her  in  shallow 
water,  and  a  portion  of  the  cargo  was  injured,  though  all  was  saved,  but  the 
vessel  was  injured  by  the  stranding;  it  was  held,  that  the  case  was  one  of 
voluntary  stranding  and  proper  for  a  general  average  contribution.  Rath- 
bones  V.  Fowler,  6  Blatchf.,  294.  See,  also,  Fitzpatrick  v.  Bales  of  Cotton, 
3  Bene.,  42;  Jones  v.  Bridge,  2  Sweeny,  (N.  Y.),  431;  Fowler  v.  Rathbones, 
12  Wall..  102;  Bales  of  Cotton,  8  Blatchf.,  221.  See,  also,  as  to  circumstances 
which  do  not  constitute  a  case  for  general  average,  The  Milwaukee  Belle, 
2  BisseU,  C.  C.  R.,  197;  The  Congress,  1  BisseU,  C.  C.  R.,  42. 


454  THE  LAW  OF  DAMAGES. 

Insurance  of  Freight  and  Profits— Measure  of  Damages  on. 

But  the  owner  is  not  bound  to  receive  her  if  she  is  not  as  good 
as  before  the  injury." 

§570  Insurance  of  Freight  and  Profits. — Freight  is 
the  hire  of  a  ship,  or  niouej  cliarged  or  paid  for  the  transpor- 
tation of  goods  therein."  This  right  or  interest  may  be 
insured  as  well  as  profits." 

§  571.  Measure  of  Damages  on. — The  measure  of  dama- 
ges on  a  policy  of  insurance  of  freight,  is  the  amount  contracted 
to  be  paid,  or  which  the  insured  would  be  entitled  to  receive, 
if  the  voyage  had  been  completed  without  loss.  And  the 
same  principle  would  govern  in  case  of  profits.  A  loss  on  a 
policy  on  profits  will  be  a  total  or  partial  loss,  according  as 
the  loss  on  the  subject  matter  of  the  profits  is  total  or  partial. 
And  whether  it  is  total  or  partial,  may  depend  upon  the  ques- 
tion whether  more  or  less  than  one-half  in  value  of  the  sub- 
ject matter  has  been  lost."  And  where  the  goods  are  insured 
in  one  policy  and  the  profits  in  a  separate  policy,  and  the 
insured  recovers  for  an  average  loss  on  the  goods,  he  can  only 
recover  an  average  loss  in  like  proportion  on  the  profits.'" 

Where  there  was  a  partial  loss  of  freight,  one-half  of  which 

"  Copelin  v.  Phoenix  Ins.  Co.,  46  Mo..  211.  And  it  has  been  held  that  the 
right  to  recover  damages  under  a  policy  is  not  necessarily  limited  to  the 
actual  amount  expended  for  repairs,  after  deducting  one-third  new  for  old. 
Hagar  v.  New  England  Ins.  Co.;  59  Me.,  460  (1871).  See,  also,  Paddock 
V.  Commercial  Ins.  Co.,  104  Mass.,  521  (1870). 

"3  Web.  Die.  Mr.  Arnold,  defines  it,  as  "the  remuneration  to  be  paid  to 
the  ship  owner  for  the  hire  of  his  ship  under  an  express  contract  of  affreight- 
ment for  a  certain  voyage,  or  the  price  to  be  paid  to  him  for  the  carriage  of 
goods  irrespective  of  such  voyage."     1  Arnold  on  Ins.,  201. 

=*  3  Kent's  Com..  340,  Ml;  ReUy  v.  Delafield,  7  John.  (N.  Y.),  520;  Abbott 
V,  Sebor,  3  Johns.  C,  39;  Tom  v.  Smith,  3  Cai.  (N.  Y.),  245.  Every  policy 
on  profits  is  necessarily  a  valued  policy.     Mumford  v.  Hallett,  1  Johns.,  433. 

^5  Abbott  V.  Sebor,  3  Johns.  C.  39. 

^  Loomis  V.  Shaw,  2  Johns.  C,  36.  Insuring  ship  and  freight  separately, 
is  attended  with  difficulties;  and  Mr.  Benecke,  suggests  that  the  only  way 
to  obviate  it,  is  to  insure  them  jointly  as  one  risk,  in  the  same  policy. 
Benecke  on  Indemnity,  57. 


i:n:sueance.  455 


Application  of  Maxim  Causa  Proxima  non  Kemota  Spectatui-. 

was  covered  by  a  policy  of  insurance,  the  value  of  which, 
mentioned  in  the  j)olicy,  was  less  than  the  actual  amount  of 
freight,  it  was  held,  that  the  measure  of  damages  was  in  the 
proportion  which  the  value  of  the  freight  actually  lost,  bore 
to  the  value  of  the  whole  freight.^* 

§  572.     Application  of  the  Maxim  Causa  Proxima 

non  Remota  Spectatur. — The  maxim  causa  proxima  non 
remota  spectatur,  has  peculiar  application  in  cases  of  marine 
insurance,  in  determining  the  liability  of  the  underwriter.'"' 
The  loss  must  be  immediately  and  not  remotely  caused  by 
the  risk  insured  against.'"  Thus,  if  a  merchant  vessel  is  taken 
in  tow  by  a  ship  of  war,  and  is  thereby  exposed  to  a  tempes- 
tuous sea  and  lost,  the  perils  of  the  sea  are  considered  the 
proximate  cause  of  the  loss."  So,  where  a  policy  provides 
"against  all  such  loss  or  damage,  not  exceeding  the  sum 
insured,  as  should  happen  to  the  property  by  fire,  other  than 
fire  happening  by  means  of  any  invasion,  insurrection,  riot  or 
civil  commotion,  or  any  military  or  usurped  power,"  it 
includes  a  loss  from  fire  which  is  caused  by  a  collision, 
although  it  does  not  iliclude  losses  caused  otherwise,  directly 
by  the  collision.  And,  under  such  a  policy,  the  insurance 
company  would  be  liable  for  a  loss  occasioned  by  the  sinking 
of  the  vessel,  if  the  sinking  was  caused  by  a  fire,  and  the  fire 
was  caused  by  a  collision,  against  which  it  was  not  insured, 

58  Fay  V.  Alliance  Ins.  Co.,  82  Mass.,  455  (1860).  It  has  been  held  that 
the  owner  or  master  of  a  vessel  cannot,  as  against  the  insurers  of  freight, 
voluntarily  suiTender  or  abandon  a  cargo  to  the  shipper  or  underwriter  free 
of  freight,  upon  the  occurrence  of  any  injury  short  of  a  technical  total  loss, 
'or  inability  to  dehver  the  goods  in  specie  at  the  port  of  destination.  If  the 
owner  demands  the  goods  at  the  port  of  detention,  the  master  should  make 
the  payment  of  full  freight  a  condition  to  the  delivery.  If  under  such  cir- 
cumstances he  dehvers  without  the  payment  of  freight,  he  cannot  hold  the 
insurer  liable.    Allen  v.  Mercantile  Ins.  Co.,  44  N.  Y.,  437  (1871). 

=9  See,  Broom's  Legal  Max.,  p.  217,  and  authority  cited,  7  ed. 

30  Taylor  v.  Dunbar,  L.  R.,  4  C.  P.,  206;  Seagrave  v.  Union  Mar.  Ins.  Co., 
L.  R.,  1  C.  P.,  320. 

3'  Hagedom  v.  Whitmore,  1  Stark.,  N.  P.  C,  157  (2  E.  C.  L.  R.). 


456  THE  LAW  OF  DAMAGES. 

Fire  Insurance— Damages. 

even  if  the  effect  of  the  collision  without  the  fire,  would  have 
been  the  settling  of  the  vessel  to  her  upper  deck,  in  which 
case  she  might  have  been  saved.^" 

So,  the  underwriters  are  liable  for  a  loss  arising  immediately 
from  the  i3erils  of  the  sea,  but  remotely  from  the  negligence 
of  the  master  and  mariners.^'  But  where  the  cargo  was 
insured,  and  the  ship  was  damaged  by  a  peril  of  the  sea,  and 
repairs  thereto  became  necessary,  and  there  being  no  funds 
provided,  the  master  to  raise  money  for  this  purpose,  sold 
part  of  the  cargo;  it  was  held,  that  the  underwriter  on  the 
cargo  was  not  liable  therefor  on  the  policy,  as  for  a  loss 
occasioned  by  a  peril  of  the  sea.'* 

§  573,  Fire  Insurance — Damages. — We  have  already 
stated  that  the  general  principle  of  damages  in  case  of  a  loss 
of  property  by  the  perils  insured  against,  is  that  of  full  com- 
pensation for  the  loss  sustained,  not  exceeding  the  amount  of 
insurance  specified  in  the  policy.'"  This  is  the  doctrine  in  cases 
of  fire  insurance  as  well  as  others.  And  where  the  policy 
covers  a  loss  by  fire,  all  the  losses  immediately  and  directly 
resulting  from  the  fire  may  be  recovered  as  damages,  subject 
to  the  limitation  above  stated.'"  The  expense  of  rebuilding 
is  not  usually  the  criterion  by  which  the  damages  are  to  be 
estimated.      For   the   property   destroyed    may   be  old,   and 

32  Insurance  Co.  v.  Transportation  Co.,  12  Wall.,  194  (1870).  See,  also, 
Cory  V.  Boylston  Fire  &  Marine  Ins.  Co.,  107  Mass.,  140  (1871);  Hayward  v. 
Liverpool  &  London  Fire  Ins.  Co.,  2  Abb.  (N.  Y.),  App.  Dec,  349  (1867). 

33  Walker  v.  Maitland,  5  B.  &  Aid.,  171  (7  E.  C.  L.  R.);  Bishop  v.  Pent- 
land,  7  B.  &  C,  223;  (14  E.  C.  L.  R.),  Waters  v.  Louisville  Ins  Co.,  11  Pet. 
(U.  S.),  220;  General  Mut.  Ins.  Co.  v.  Sherwood,  14  How.  (Id.),  351. 

34  Powell  V.  Gudgeon,  5  M.  &  S.,  431.  See,  also,  Marshall  on  Ins.,  730, 
3d  ed. ;  and  for  an  illustration  of  the  maxim,  see  Broom's  Legal  Maxims, 
217,  et  seq. 

35  Peddie  v.  Quebec  Fu:e  Ins.  Co.,  1  Smith  (L.  C),  174;  Marchesseau  v.  Mer- 
chants' Ins.  Co.,  1  Rob.  (La.),  438;  Henderson  v.  Western  Marine  &  Fire  Ins. 
Co.,  10  Rob.  (La.),  164;  McCraig  v.  Quaker  City  Ins.  Co.,  18  U.  C.  Q.  B., 
130. 

36  May  on  Insurance,  523,  and  authorities  there  cited. 


INSURANCE.  457 


Fire  Insurance— Damages. 


injured  by  the  use  and  decay,  and  to  require  the  insurer  to 
pay  an  amount  required  to  rebuild  or  restore  the  same,  with 
new  materials,  might  far  transcend  the  value  of  the  building 
or  other  property  destroyed,  and  give  more  than  full  com- 
pensation for  the  loss.'^ 

There  is  no  rule  applicable  to  fire  insurance,  as  there  is 
in  marine,  by  wliich  the  insured  is  required  to  allow  one-third, 
new  for  old.  Such  a  claim,  or  a  claim  to  rebuild,  can  only  be 
made  where  there  is  some  express  provision  of  the  policy  pro- 
viding for,  or  authorizing  it."  And  under  an  ordinary  fire 
policy,  where  the  underwriter  agreed  to  make  good  all  loss  or 
damage  to  the  insured  property,  not  exceeding  the  amount 
Insured,  and  the  value  of  the  property  at  the  time  of  the  fire 
was  $18,000,  but  his  loss  was  only  $6,000  and  the  insurance 
$5,000;  it  was  held,  that  the  insured  could  recover  the  whole 
amount  of  the  $5,000  insured,  and  that  he  was  not  limited 
to  the  proportion  ^  $5,000  to  $18,000,  as  in  marine  insurance.'* 
The  value  of  the  property  at  the  time  of  the  loss,  not  exceed- 
ing however  the  ameunt  insured,  is  the  measure  of  the  dama- 
ges; and  this  may  be  determined  by  proof  of  other  property 
of  a  similar  kind  in  the  market.'"  And  where  there  is  a  loss 
of  property  in  a  foreign  country,  insured  for  a  sum  expressed 
in  dollars,  upon  a  domestic  policy,  the  rule  is  to  determine  its 
value  at  the  place  where  it  was  located,  and  then  find  its 
equivalent  in  the  currency  of  the  country  where  the  suit  is 

3«  Brinely  v.  Tlie  National  Ins.  Co.,  11  Met.  (Mass.),  195;  Morrell  v.  Irving 
Fire  Ins.  Co.,  33  N.  Y.,  429;  Mississippi  Ins.  Co.  v.  Ingram,  34  Miss.,  215; 
Liscomb  v.  Boston  Mut.  Ins.  Co.,  9  Met.  (Mass.),  205;  Com.  Ins.  Co.  v.  Sen- 
net, 37  Pa.  St.,  205;  Laurent  v.  The  Chatham  Ins.  Co.,  1  HaU  (N.  Y. 
Superior  Ct.),  41;  May  on  Ins.,  524. 

37  Wallace  v.  Insurance  Co.,  4  La.,  289;  Commonwealth  Ins.  Co.  v.  Sen- 
nett,  37  Pa.  St.,  205. 

3^  Mississippi  Mut.  Ins.  Co.  v.  Ingram,  34  Miss.,  215.  See,  also,  Underhill 
V.  Agawam  Mut.  Ins.  Co.,  6  Gush,  (Mass.),  440;  Angel  on  Ins.,  §§  264, 
265;  Parsons  Merc.  L.,  530. 

39  Commonwealth  v.  Senuett,  37  Pa.  St.,  205;  Hoffman  v.  ^tna  Ins.  Co., 
1  Robert.  (N.  Y.),  501,  s.  c,  Abb.  Pr.,  325,  affirmed  32  N.  Y.,  405. 


458  THE  LAW  OF  DAMAGES. 


Lessee's  Interest. 


brought,  bj  determining  the  intrinsic  value  of  the  currency  of 
that  country  as  compared  with  tlie  currency  of  the  otlier." 

So,  where  the  plaintiff  acquired,  by  a  quit-claim  deed,  the 
equity  of  redemption  to  certain  premises  on  which  a  mort- 
gagee had  entered  for  condition  broken,  and  insured  tlie 
building  for  $1,5"0,  which  was  stated  in  the  policy  to  be  not 
more  than  three-fourths  of  the  value  of  the  property  insured, 
and  the  land  was  worth  $1,000,  the  buildings  $2,050,  and  the 
mortgage  was  for  $1,650  and  the  loss  by  fire  amounted  to 
$1,850;  and  the  insurance  was  effected  with  knowledge  by 
the  company  of  the  circumstances;  it  was  held,  that  the 
plaintiff  was  entitled  to  recover  the  full  amount  insured, 
althouijh  this  amount  was  more  than  three-fourths  of  the  value 
of  the  property  insured,  after  deducting  the  mortgage." 

§  574.  Lessee's  Interest. — On  general  princiiDles  the  les- 
see can  never  recover  more  on  a  policy  for  a  loss,  than  the 
value  of  his  interest.  Thus,  when  the  insurance  is  on  a  build- 
ing in  which  the  insured  has  only  a  leasehold  interest,  his 
damages  would  be  limited  to  the  value  of  the  unexpired 
term."' _____^^ 

40  Burgess  v.  AUiance  Ins.  Co.,  10  Allen  (Mass.),  221  (1865). 

«  Baden  v.  Hingham  Mut.  Ins.  Co.,  18  Pick.  (Mass.),  523.  "A  mortgagor 
has  an  interest  in  the  property  up  to  its  full  value.  His  debts  may  be 
greater  than  his  assets,  but  this  circumstance  has  never  been  considered  as 
proving  a  want  of  interest  in  it.  If  the  property  is  destroyed  the  loss  is  his,  as 
the  debt  survives  against  him.  Columbia  Ins.  Co.  v.  Lawrence,  2  Pet.,  25; 
Harrington  v.  Dall,  13  Mass.,  96;  Gordon  v.  Mass.  Ins.  Co.,  2  Pick.,  249. 
This  interest  continues  until  foreclosure.  Story  v.  Manufacturers'  Ins. 
Co.,  10  Pick.,  40;  Stephens  v.  ^tna  Ins.  Co.,  43  lU.,  327;  Allen  v.  Franklin 
Ins.  Co.,  9  How.  (N.  Y.),  508."  From  article  on  "Insurance  of  Mortgage 
Interests,"  byH.  E.  Mills,  pubhshed  in  5  Western  Insurance  Review,  336, 
where  the  subject  is  fuUy  treated. 

^  Niblo  V.  N.  A.  Ins.  Co.,  1  Sandf.  (N.  Y.  Superior  Ct.),  41.  Where  the 
building  msured  against  fire  stood  on  leased  land,  and  it  was  destroyed  by 
fire,  and  the  lease  would  soon  expire,  so  that  the  owner  of  the  building 
would  be  required  to  remove  it  if  rebuilt,  or  release  the  land;  it  was  held, 
that  the  damage  recoverable  was  the  amount  insured,  not  exceeding  the 
value  of  the  building,  without  reference  to  the  circumstances  of  the  case. 
Laurent  v.  Chatham  Ins.  Co.,  1  Hall.  (N.  Y.  Superior  Ct.),  41.    A  mortgagor 


INSUEAKCE.  459 


Mortgagee's  Interest. 


§575.  Mortgagee's  Interest.  —  The  mortgagee  may 
recover  in  all  cases  to  the  extent  of  his  interest  in  the  insured 
property,  even  though  the  mortgagor  restores  the  property 
after  the  loss,  and  makes  it  as  good  as  before,  and  even  though 
the  mortgagee  afterwards  reduces  his  claim  by  selling  other 
securities."  And  the  weight  of  authority  would  authorize 
him  to  recover  the  full  amount  insured  not  exceeding  the  loss, 
whether  he  insured  as  general  owner  or  as  morto'affee,  and 
this  without  prejudice  to  the  claim  secured  by  the  mortgage, 
and  whether  paid  or  unpaid."  So,  it  seems  he  may  recover 
the  amount  insured  though  the  property  remaining  after  the 
fire  was  ample  security  for  his  debt."    And  in  'New  Hampshire, 

may  recover  the  value  of  the  property  mortgaged  and  lost  by  the  fire,  with- 
out reference  to  the  circumstance  that  his  equity  may  have  been  seized  on 
execution.  Story  v.  Manufacturers'  Ins.  Co.,  10  Pick.  (Mass.),  40.  And  the 
same  rule  appUes  to  goods  lost  in  a  custom  house,  without  reference  to  the 
question  whether  the  duties  thereon  have  been  paid  or  not.  Wolf  v.  How- 
ard Ins.  Co.,  1  Sandf.  (N.  Y.  Superior  Ct.),  124;  3  Seld.  (N.  Y.),  583.  But 
where  distilled  Liquors,  upon  which  the  internal  revenue  tax  was  not  paid, 
were  destroyed,  on  a  claim  for  the  insurance,  the  court  held,  that  as  the  des- 
truction of  the  liquor  left  the  owner  of  the  liquor  without  any  personal 
liability  for  the  government  tax,  the  insured  could  recover  only  the  value  of 
the  property  subject  to  the  tax.  Security  Ins.  Co.  v.  Farrell,  Sup.  Ct.  III.,  2 
Ins.  L.  J.,  302. 

«  Insurance  Co.  v.  UpdegrafF,  21  Pa.  St.,  513;  Boston  &  Salem  Ice  Co.  v. 
Royal  Ins.  Co.,  12  Allen,  (Mass.),  381;  Sussex  Co.  Mut.  Ins.  Co.  v.  Woodruff, 
2Dutcher,  (N.  J.),  541;  Foster  v.  Equity  Mut.  Ins.  Co.,  2  Gray,  (Mass.), 
216;  Carpenter  V.  Washington  Ins.  Co.,  16  Pet.,  (U.  S.),  496;  Thornton  v. 
Enterprise  Ins.,  Co.,  (Sup.  Ct.  Pa.),  Legal  Int.,  170,  (June  14,  1872). 

-wKingv.  State  Mut.  Ins.  Co.,  7  Cush.,  (Mass.),  1;  Suffolk  Fire  Ins.  Co. 
V.  Boyden,  9  Allen,  (Mass.),  123;  Concord  Mut.  Fire  Ins.  Co.  v.  Woodbury, 
45  Me.,  447;  Clark  v.  Wilson,  103  Mass.,  221. 

«  Kernochau  v.  New  York  Bowery  Ins.  Co.,  17  N.  Y.,  428;  Motley  v. 
Manuf.  Ins.  Co.,  29  Me.,  337;  Foster  v.  Equitable  Mut.  Fire  Ins.  Co.,  2 
Gray,  (Mass.),  226.  But  in  New  Jersey  it  was  held  that  where  there  is  an 
insurance  on  a  mortgage  interest,  if  the  insured  parts  with  any  of  his  secu- 
rities, or  if  part  of  his  claim  is  paid,  the  insurer  wi^  only  be  liable  for  the 
amount  remaining.  But  if  the  insured  parts  with  or  receives  a  portion  of 
his  claim  after  the  suit  is  commenced,  it  does  not  affect  his  claim.  Sussex 
County  Mut.  Ins.  Co.  v.  Woodruft,  2  Dutch.,  (N.  J,),  541.    And  it  has  been 


460  THE  LAW  OF  DAMAGES. 

Bailees  and  Trustees— Vendor  on  a  Contract  of  Sale. 

under  a  restriction  of  liability,  contained  in  the  policy,  to  two- 
thirds  of  the  value  of  the  property  lost,  the  mortgagee  may  at 
least  recover  the  full  value  of  his  interest,  if  it  does  not  exceed 
two-thirds  of  the  value  of  the  property." 

§  576.  Bailees  and  Trustees. — A  bailee  having  goods 
in  his  possession  may  insure  them  in  his  own  name  and 
recover  in  case  of  loss,  the  full  value  of  the  property  covered 
by  the  policy,  not  exceeding  the  amount  insured.*'  And  a 
warehouseman  insuring  goods  "in  trust,"  may  recover  the  full 
value  of  the  goods  held  by  him  in  storage." 

§  577.  Vendor  on  a  Contract  of  Sale  —Where  a  party 
contracted  to  sell  a  house  and  lot,  and  afterwards  took  a  pol- 
icy on  the  house  in  his  own  name,  but  before  the  insurance, 
received  a  part  of  the  purchase   money   and   a  portion  of  it 

further  held  that  an  insurance  to  a  mortgagee  is  an  insurance  of  his  debt, 
and  the  insurer  is  only  liable  to  the  amount  of  the  debt.  But  if  the  mort- 
gagor takes  a  policy  and  assigns  it  to  the  mortgagee  as  collateral  security, 
the  mortgagee  may  recover  the  entire  loss  to  the  amount  of  the  sum  insured. 
Carpenter  v.  Washington  Ins.  Co.,  16  Pet.,  U.  S.,  495.  But  see,  also,  Kong 
V.  State  Ins.  Co.,  7  Cush.,  1;  Kemochan  v.  Bowery  Ins.  Co.,  supra.  So,  in 
Foster  v.  Equitable  Mut.  Fire  Ins.  Co.,  supra,  it  was  held,  that  where  a 
mortagee  had  a  mortgagor's  policy  assigned  to  him,  with  the  consent 
of  the  company,  and  the  insured  property  was  damaged  $574,  but  was 
repaired  and  made  as  good  as  before  by  the  owner  of  the  equity  of  redemp- 
tion, before  the  commencement  of  the  suit  on  the  policy;  it  was  held  that  the 
company  were  bound  to  pay  4he  amount  of  damage.  See,  also,  Mathewson 
V.  Western  Assurance  Co.,  10  L.  C,  (S.  C,  Montreal),  8.  The  mortgagee  is 
not  obliged  to  look  to  the  land,  although  it  may  be  sufficient  to  satisfy  the 
mortgage  debt.    Rex  v.  Insurance  Co.,  2  Phil.,  (Pa.),  357  (1858). 

•««  Sanders  v.  Hillsborough  Ins.  Co.,  44  N.  H.,  2-38. 

47  Waring  v.  Indemnity  Fire  Ins.  Co.,  45  N.  Y.,  606;  DeForest  v.  Fulton 
Fire  Ins.  Co.,  1  HaU,  (N.  Y.  Superior  Ct.),  84;  Lee  v.  Howard  Ins.  Co.,  11 
Cush.,  (Mass.),  324;  May  on  Ins.,  §  80. 

*8  Waters  v.  Monarch  Fire  Ins.  Co.,  5  E.  &  B.,  870;  Hough  v.  People's  Ins. 
Co.,  36  Md.,  398;  London  Railway  Co.  v.  Glyn,  1  E.  &  E.,  652;  Siter  v.  Morris. 
13  Pa.  St.,  218.  See,  also,  Ayres  v.  Hartford  Ins.  Co.,  17  la.,  176,  where  it 
-was  held  that  the  term  'in  trust,"  in  a  poHcy,  unless  defined  specially  in  a 
diflferent  way,  includes  every  thing  in  which  the  insured  has  a  qualified 
interest  with  the  possession,  while  the  ownership  is  in  another.  See,  also, 
Turner  v.  Stetts,  28  Ala.,  420. 


IXSURAXCE.  461 


Application  of  Maxim  Causa  Proxima,  etc.,  to  Fire  Insurance— Damages,  etc. 

afterwards,  and  the  house  was  destroyed  by  fire  before  a  fall 
payment  of  the  consideration  money  and  before  the  execution 
of  a  conveyance;  it  was  lield,  that  the  policy  covered  the 
entire  legal  and  equitable  interest,  and  not  merely  the  unpaid 
balance  of  the  purchase  money  due;  and  that  as  tlie  insurance 
was  on  the  house  and  not  expressed  to  be  to  cover  a  debt 
merely,  and  did  not  include  the  lot,  the  company  was  not 
entitled  to  any  cession  of  the  lot,  or  of  the  claim  against  the 
vendee." 

§578.  Application  of  the  Maxim  Causa  Proxima, 
etc.,  to  Fire  Insurance. — The  losses  for  which  damages  may 
be  recovered  on  a  fire  insurance  policy,  must  be  such  as  were 
proximately  caused  by  the  fire.  A  policy  insuring  "all  the 
articles  making  up  the  stock  of  a  pork  house,  and  all  within 
the  building  and  pertinent  thereto,"  covers  every  thing  pro- 
perly belonging  to  the  stock  of  the  pork  house,  witliout  regard 
to  the  particular  ownership  of  each  article  contained  in  or 
appurtenant  to  the  building.""  Remote  consequential  dam- 
ages cannot  be  allowed.  Thus,  damage  caused  by  an  inter- 
ruption of  business,"  or  the  loss  of  the  use  of  a  grist  mill  and 
profits  anticipated  therefrom,  or  the  expense  of  keeping 
employes  necessary  for  the  operation  of  same  while  being 
rebuilt,"  or  the  loss  of  the  prospective  rent;"  is  not  recover- 
able on  a  policy  of  insurance  covering  a  loss  of  a  mill  by  fire. 

§579.     Damages    Limited   by  the   Contract. — The 

amount  of  damages  in  case  of  a  loss,  may  be  limited  by  the 
terms  of  the  policy.  Thus,  the  policy  sometimes  provides 
that  the  amount  payable  in  case  of  a  loss,  shall  only  be  a 
certain  percentage  or  proportion  of  the  value  of  the  property 

«  Insurance  Co.  v.  UpdegrafF,  21  Pa.  St.,  513. 
so  ^tna  Ins.  Co.  v.  Jackson,  16  Mon.  (Ky.),  250. 
51  Wright  V.  Pole,  In  re,  1  Al.  &  El.,  621;  s.  c.  3  Nev.  &  Man.,  819. 
s^Menzies  v.  North  British  Ins.  Co.,  Ct.  Sess.  Cas.  (Scotch),  694;  Niblo  v. 
North  American  Fire  Ins.  Co.,  1  Sandf.  (Superior  Ct.,  N.  Y.),  551. 
S3  Leonarda  V.  Phcenix  Ins.  Co.,  2  Rob.,  (La.),  131. 


462  THE  LAW  OF  DAMAGES. 


Kebuilding  and  Kepalring. 


insured  at  the  time  of  its  loss.  In  such  a  case,  the  value  of 
the  property  at  the  time  of  the  loss  must  be  shown,  though 
the  policy  be  a  valued  one." 

§  580.  Rebuilding  and  Repairing.— We  have  said  that 
the  right  of  the  insurer  to  rebuild  or  repair  the  lost  property, 
in  lieu  of  the  payment  of  the  loss,  rests  upon  the  agreement 
of  the  parties  to  that  eifect.  Where  such  a  provision  is 
inserted  in  the  policy,  and  the  underwriter  elects  to  rebuild 
or  repair,  and  performs  the  duty  insufficiently,  he  is  liable  for 
damages  for  the  defective  performance  of  the  same,  as  on  a 
contract  to  rebuild  or  repair."  And  for  a  failure  fully  to 
perform  the  contract,  the  damages  would  be  the  difference 
between  the  value  of  the  property  as  repaired  or  rebuilt,  and 
its  value  as  it  would  have  been,  if  the  same  had  been  done 
according  to  the  contract.^' 

And  the  same  rule  would  apply  where  the  insurer  enters 
upon  the  work  of  rebuilding,  but  desists  and  abandons  it 
before  the  same  is  fully  completed."     So,  where  the  under- 

s4Hutcliiiis  V.  People's  Mut.  Ina.  Co.,  11  Foster,  (N.  H.),  238;  Post  v. 
Hampshire  Mut.  Ins.  Co.,  12  Met.  (Mass.),  546;  Eagan  v.  Mutual  Ins.  Co., 
5  Den.  (N.  Y.),  326;  Atwood  v.  Union  Mut.  Ins.  Co.,  8  Post.  (N.  H.).  234; 
Ashland  Mut.  Ins.  Co.  v.  Housinger,  10  Ohio  St.,  10;  Singleton  v.  Boone  Co. 
Ins.  Co.,  45  Mo.,  250,  where  the  policy  provided  for  the  payment  of  two-thirds 
of  the  loss,  in  case  of  total  loss,  and  of  partial  losses  in  full,  and  there  was  a 
loss  of  the  insured  goods,  to  the  amount  of  $3,859,  only  about  |70  in  value 
being  saved  from  the  stock ;  the  total  value  of  which  was  $3,929 ;  the  court  held 
this  a  case  of  total  loss  within  the  intent  of  the  parties,  and  not  a  partial 
loss,  so  as  to  entitle  the  insured  to  recover  the  fuU  amount  of  the  insurance. 

55  New  York  Fire  Ins.  Co.  v.  Dalaven,  8  Paige,  (N.  Y.),  418;  Deals  v. 
Home  Ins.  Co.,  36  N.  Y.,  522;  Home  Ins.  Co.  v.  Thompson,  1  Upper  Canada, 
(Err.  &  App.),  247. 

ss  Parker  v.  Eagle  Ins.  Co.,  9  Gray,  (Mass.),  152,  deducting  one-fourth  of 
the  expense,  as  such  was  the  stipulation  in  the  policy.  Times  Fire  Ins.  Co. 
V.  Hawke.  5  H.  &  N.,  (Exch.),  935. 

57  Morell  V.  Irving  Fire  Ins.  Co.,  33  N.  Y.,  429  (I860).  In  this  case,  there 
were  two  policies  covering  the  same  loss  by  different  companies,  in  each  of 
which  there  was  a  provision  giving  a  right  to  rebuild.  It  was  held,  that  the 
companies  might  be  sued  jointly  or  severally,  and  that  if  one  was  compelled 
to  pay  the  whole  loss,  it  could  compel  the  other  to  contribute.  See,  also,  as 
to  the  measure  of  damages  in  such  a  case,  Parker  v.  Eagle  Fire  Ins.  Co.,  9 
Gray.  (Mass.),  152. 


INSUKANCE.  463 


Double  Insurance. 


writer  elects  under  the  policy  to  rebuild,  and  after  he  has 
commenced,  is  prevented  from  completing  the  work,  or  where 
it  is  required  to  take  it  down  as  dangerous;"  or  where  he  is 
prevented  from  rebuilding  by  the  public  authorities,""  he 
would  be  liable  for  the  fall  amount  of  the  loss  by  the  fire. 
But  where  the  policy  provides  that  in  case  of  loss,  the  insurer 
raaj'-  rebuild,  a  refusal  by  the  insured  to  allow  him  so  to  do, 
would  destroy  any  right  of  action  by  the  insured  for  the  loss." 

§  581.  Double  Insurance.— Where  there  is  more  than 
one  insurance  on  the  same  property  for  the  same  risk,  each 
insurer,  in  the  absence  of  any  stipulation  to  the  contrary,  is 
liable  for  the  loss,  not  exceeding  the  amount  insured  by  him." 
But  in  case  he  pays  the  whole  loss  the  others  may  be  required 
to  contribute  in  proportion  to  the  amount  insured  by  them.*' 

§  582.  It  is  common  however,  to  insert  a  clause  in  poli- 
cies of  insurance  against  loss  by  fire,  providing  for  the  appor- 
tionment of  the  loss  in  case  of  other  insurance  on  the  same 
property.  In  a  recent  case  in  the  Court  of  Appeals  of  New 
Tork,  the  following  clear  exposition  of  the  law  relating  to  this 
subject  is  furnished.  The  court  say:  "  The  clause  now  usual 
in  policies  of  insurance,  which  provides  for  an  apportujument 
of  the  loss  in  case  of  other  insurance  on  the  property,  is  a 
part  of  the  contract  and  must  receive  a  reasonable  construc- 
tion. We  have  no  right  to  engraft  upon  it  the  rules  govern- 
ing suits  for  contribution  among  insurers,  or  to  restrict  its 
operation  to  cases  where  such  suits  could  be  maintained,  but 


59  Brown  v.  Royal  Ins.  Co.,  1  E.  &  E.  (Q.  B.),  853. 

60  Brady  v.  North  West.  Ins.  Co.,  11  Mich.,  425. 

6'  Beals  V.  Home  Ins.,  Co.,  36  Barb.  (N.  Y.),  614;  36  N.  Y.,  522. 

6=*  Mechanics'  Fire  Ins.  Co.  v.  Nichols,  1  Harr.  (N.  J.),  410;  Hough  v. 
People's  Ins.  Co.,  36  Md.,  398;  Harris  v.  Protection  Ins.  Co.,  Wright,  (0.), 
548;  Peoria  Marine  and  Fire  Ins.  Co.  v.  Lewes,  18  111.,  553;  Baltimore  Fire 
Ins.  Co.  V.  Lovey,  20  Md.,  20;  Slootv.  Royal  Ins.  Co.,  49  Pa.  St.,  14;  Merick 
V.  Germania  Fire  Ins.  Co.,  54  Pa.  St.,  277. 

*3  May  on  Ins.,  535,  et  seq. 


4:64c  THE  LAW  OF  DAMAGES. 

,-  Double  Insurance. 

must  look  to  the  language  of  the  clause  itself,  and  construe  it  as 
we  would  any  other  stipulation  between  the  insurer  and  the 
insured.  "We  cannot  adopt  the  view  taken  of  this  clause  in  the 
case  of  Howard  Insurance  Comjpany  v.  Scribner^^  where  it 
was  held  in  analogy  to  the  rule  in  actions  for  contribution, 
that  where  a  specific  parcel  of  property  is  insured  by  one 
policy,  and  the  same  property  is  covered  by  another  policy 
which  also  includes  other  property,  the  latter  policy  is  to  be 
thrown  wholly  out  of  view,  and  does  not  constitute  other 
insurance  within  the  meaning  of  the  clause;  in  either  case  the 
whole  sum  insured  by  the  more  comprehensive  policy,  is  to  be 
considered  as  so  much  additional  insurance  upon  the  parcel 
separately  insured.  Where  several  parcels  of  property  are 
insured  together  for  an  entire  sum,  it  is  impossible  to  say  as 
to  either  of  the  parcels,  that  there  is  no  insurance  ujion  it, 
neither  is  it  reasonable  to  assume  that  any  of  the  parcels  is 
insured  for  more  than  its  value  when  the  whole  sum  insured 
is  less  than  the  aggregate  value  of  all  the  parcels  covered  by 
the  policy.  The  difficulty  lies  in  determining  what  part  of 
the  whole  sum  insured  is  to  be  deemed  applicable  to  either 
parcel,  .where  the  policy  itself  makes  no  separation.  If 
the  entire  property  is  destroyed,  as  in  this  case,  the  rule 
laid  down  in  2  Phillips  on  Insurance,^*  and  in  Blake  v.  Ex- 
change Mutual  Insurance  Comjpany^^  carries  out  the  intent 
of  the  clause,  and  works  entire  equity  between  the  insurers 
and  the  insured,  as  well  as  between  the  several  insurers. 
That  rule  is,  in  substance,  that  for  the  purpose  of  apportioning 
the  loss,  in  case  of  an  insurance  where  several  parcels  are 
insured  together  by  one  policy  for  an  entire  sum,  and  one  of 
the  parcels  is  insured  separately  by  another  policy,  the  sum 
insured  by  the  first-mentioned  policy  is  to  be  distributed 
among  the  several  parcels,  in  the  proportion  which  the  sum 

6+  5  HiU.  (N.  T.),  298. 
fis  Page  36,  No.  1263o. 
« 12  Gray,  265. 


INSURANCE.  465 


Double  Insurance. 


insured  by  the  policy  bears  to  the  total  value  of  all  the  parcels. 
Thus,  in  round  numbers,  the  sum  insured  in  this  case  by  the 
policies  other  than  the  defendant's  on  the  property  as  an 
entirety,  M-as  $47,000.  The  total  value  of  the  property  covered 
by  these  policies  u-as  $88,000.  In  case  of  a  total  loss,  each 
parcel  should  be  deemed  insured  thereby  for  4T-88  of  its 
value.  The  parcel  separately  insured  by  the  defendant  was 
worth  $16,000,  and  was  insured  by  the  defendant  for  $3,000, 
which  was  equal  to  3-16  of  its  value.  It  is  manifest  that 
there  was  no  over-insurance,  and  that  consequently  there  is  no 
occasion  for  any  apportionment."" 

§  584.  And  where  a  policy  for  $3,000,  stated  that  it  was 
additional  to  $9,000  insured  in  other  offices,  and  $8,000  to  be 
insured  in  other  offices;  and  there  was  at  the  time  of  the  loss 
only  $11,000  additional  insurance;  it  was  held,  that  the 
insurers  must  pay  in  proportion  to  the  actual  and  not  the  con- 
templated insurance  provided  for  by  the  policy." 

And  in  an  action  on  a  policy  which  provided,  "that  when 
property  is  insured  in  this  company  solely,  three-fourths  only 
of  the  value  will  be  taken;  and  in  case  of  loss  the  company 
will  be  liable  to  pay  only  three-fourths  of  the  value  at  the 
time  of  the  loss;"  and  that  "in  case  of  loss  or  damage  of 
property  upon  which  double  insurance  exists,  the  company 
shall  be  liable  to  pay  only  such  proportion  thereof  as  the  sum 
insured  by  this  company  bears  to  the  whole  amount  insured 
thereon— such  amount  not  to  exceed  three-fourths  of  the 
actual  value  at  the  time  of  the  loss,"  the  Supreme  Court  of 
Massachusetts,  by  Bigelow,  J.,  said:  "The  defendants  did 
not  assume  a  liability  in  case  of  the  existence  of  other 
insurance  on  the  property,  to  be  ascertained  solely  by  calcula- 

67  Oo-den  v.  East  River  Ins.  Co.,  50  N.  Y.,  388  (1872).  See,  Cromie  v. 
Ken  &Lou.  Mut.  Ins.  Co.,  15B.  Mon.  (Ky.),  432;  Angelrod  v.  Delaware 
Ins.  Co.,  31  Mo.,  593,  in  which  latter  case  the  same  doctrine  was  recog- 
nized. 

«8  RichmondviUe  v.  Ham.  Mut.  Ins.  Co.,  14  Gray  (Mass.),  459. 

30 


466  THE  LAW  OF  DAMAGES. 

Double  Insurance. 

ting  the  proportion  which  the  sura  insured  by  them  bore  to 
the  whole  amount  insured  on  the  property.  The  basis  of  cal- 
culation was  in  all  cases  to  be  the  value  of  the  property 
insured,  after  deducting  one-fourth  of  such  value.  Of  this 
sura  the  defendants  were  to  pay  such  portion  as  the  sura 
insured  by  the  policy  issued  by  them,  should  bear  to  the  whole 
sum  insured  by  all  the  policies  existing  on  the  property  at  the 
time  of  the  loss.  In  other  words,  the  defendants  were  liable 
only  for  their  proportion  of  three-fourths  of  the  value  of  the 
property  insured ;  and  this  proportion  was  to  be  ascertained 
by  calculating  the  ratio  which  the  sum  insured  in  the  policy 
declared  on,  bore  to  the  whole  sum  insured  by  all  the  policies 
existing  on  the  property.  Thus,  if  the  whole  property  at  the 
time  of  the  loss  amounted  to  ten  thousand  dollars,  the  sum  on 
which  the  liability  of  the  defendants  must  be  reckoned  would 
be  three-fourths  of  ten  thousand,  or  seven  thousand  five  hun- 
dred dollars;  and  of  this  last  sum  the  defendants  would  be 
held  to  pay  only  the  proportion  which  the  amount  insured  by 
them,  viz.,  two  thousand  dollars,  bore*  to  the  whole  sum 
insured,  viz.,  five  thousand,  or  two-fifths  of  seven  thousand 
five  hundred  dollars,  which  would  be  three  thousand  dollars. 
But  as  this  last  sum  exceeds  the  whole  amount  insured  by  the 
defendants,  it  would  be  cut  down  to  that  amount,  and  the 
plaintiff  could  only  recover  two  thousand  dollars."  '* 

§  585.  But  where  the  loss  exceeds  the  whole  amount 
insured,  and  the  policies  provide  that  in  case  of  other  insur- 
ance, the  insured  shall  not  be  entitled  in  case  of  loss  to  an}^ 
greater  proportion  of  the  loss  or  damage  than  the  amount 
insured  by  the  policy  shall  bear  to  the  whole  amount  insured, 
the  several  insurers  are  liable  to  pay  the  whole  amount  of 
their  respective  insurance.'" 

«9  Haley  v.  Dorchester  Mut.  Fire  Ins.  Co.,  12  Gray  (Mass.),  545.  See, 
also  Goodale  v.  N.  E.  Mut.  Fire  Ins.  Co.,  5  Fost.  (N.  H.),  169. 

7°  PhiUips  V.  Perry  County  Ins.  Co.,  7  Phila.  (Penn.),  673  (1870).  See, 
also,  to  the  same  effect,  Ogden  v.  N.  E.  Ins.  Co.,  50  N.  Y.,  388  (1872). 


I:N"SUKANCE.  467 


Subrogation. 


And  where  a  policy  provided,  that  "  where  property  insured 
in  this  company  is  damaged  by  removal  from  a  building  in 
which  it  is  exposed  to  fire,  such  damage  shall  be  borne  by  the 
insured  and  the  insurers,  in  such  proportions  as  the  whole 
sum  insured  bears  to  the  whole  value  of  the  property  insured, 
of  which  proof  in  due  form  shall  be  made  by  the  claimant," 
and  a  portion  of  the  property  insured  was  destroyed  by  fire 
and  another  portion  damaged  by  removal;  it  was  held,  that 
the  damage  occasioned  by  the  removal  should  be  borne  by  the 
parties  according  to  their  respective  interests  or  risks,  the 
share  of  each  bearing  the  same  proportion  to  the  whole  dam- 
age that  his  interest  in  the  property  or  risk  bore  to  the  whole 
value,  and  that  the  insured  could  recover  only  such  proportion 
of  the  loss  by  removal,  as  the  insurance  bore  to  the  whole 
property  at  risk  at  the  time  of  the  loss." 

§  586.  Subrogation.— Where  a  party  sustains  a  loss  by 
fire  caused  by  the  fault  of  another,  and  receives  satisfaction 
from  such  wrongdoer  for  the  loss,  after  having  received  the 
amount  insured  thereon  from  an  insurance  company,  he  holds 
so  much  of  the  amount  received  from'  such  wrono-doer  as 
would  he  sufficient  to  reimburse  such  company,  in  trust,  and 
such  company  may  recover  such  amount  by  suit  in  equity." 

But  in  a  recent  case  in  Ohio,  where  a  loss  was  partially 
covered  by  insurance,  and  was  occasioned  by  a  wrono-doer 
against  whom  after  payment  of  the  insurance,  the  insured 
recovered  a  judgment  for  the  same  loss,  and  which  was  satis- 
fied, but  to  the  prosecution  of  which  suit  the  underwriter,  on 
request,  refused  to  contribute;  in  a  subsequent  suit  by  the 
underwriter  against  the  insured  for  reimbursement,  it  was 
held,  that  if  the  plaintiff  could  recover  anything,  he  could 
recover  no  more  than  the  surplus  of  the  amount  recovered  of 

7'  Peoria  Marine  Fire  Ins.  Co.  v.  Wilson,  5  Minn.,  53  (1860J. 
7*  Monmouth,  etc.,  Ins.  Co.  v.  Hutchinson,  21  N.  J.  Eq.,  107.     See,  also, 
Weber  v.  Morris  &  Essex  R.  Co.,  35  N.  J.  L.,  409;  May  on  Ins.,  §  454. 


468  THE  LAW  OF  DAMAGES. 

Life  Insurance— Damages  on  a  Life  Policy. 

the  wrongdoer,  wliich  remained  after  full  satisfaction  of  his 
uncompensated  loss,  and  the  expenses  of  the  recovery." 

§  587.  Life  Insurance. — Life  insurance  is  a  contract  to 
pay  a  certain  sum  of  money  on  the  deatli  of  a  person,  in  con- 
sideration of  the  payment  of  a  certain  sum  or  premium  annu- 
ally or  otherwise,  during  the  life  insured,  or  for  a  cer- 
tain number  of  years.  In  case  of  the  payment  of  tlie  pre- 
premium  in  full,  the  party  entitled  to  the  benefit  thereof 
usually  receives  what  is  termed  "a  paid  up  policy,"  which 
entitles  his  heirs,  representatives  or  assigns,  to  the  amount 
stipulated  to  be  paid  on  his  death.  Life  insurance,  is  not  like 
marine  or  fire  insurance,  intended  as  an  indemnity  for  a  loss 
which  may  or  may  not  happen  within  a  stipulated  time.  The 
amount  stipulated  to  be  paid  on  the  deatli  of  a  party,  must 
sooner  or  later  be  paid;  and  it  is  free  from  those  vexations 
questions,  that  frequently  arise  in  marine  and  fire  insurance, 
in  relation  to  valuation  and  double  insurance. 

§  588.  Damages  on  a  Life  Policy. — The  amount  ordi- 
narily recoverable  on  a  life  policy  of  .insurance,  by  the  holder, 
is  the  amount  stipulated  to  be  paid  on  the  death  of  the  party 
whose  life  is  insured,  without  any  regard  to  other  insurance 
by  the  same  party  or  others,  on  the  same  life.'*  And  where 
an  action  was  brought  to  recover  on.  a  life  insurance  policy 
which  provided  for  the  payment  of  two  thousand  dollars,  on 
the  loss  of  life  from  accidental  injuries  occasioning  death 
within  ninety  days  from  the  accident;  and  the  sum  of  ten 
dollars  a  week  for  a  period  of  not  exceeding  twenty-six  weeks, 
for  personal  injury  received  from  "any  single  accident,  by 
wliich  the  insured  should  sustain  any  personal  injury  which 
should  not  be  fatal,"  it  was  held,  that  the  weekly  sum  was 
due  for  an  injury  by  an  accident  which  did  not  occasion  death 

73  Newcomb  v.  Cincinnati  Ins.  Co.,  22  Ohio  St.,  382.     See,  also,  Hygum  v. 
^tnalns.  Co.,  11  la.,  21. 
7"  May  on  Ins.,  7-8.  » 


mSUEAlS'CE.  469 


Creditors'  Interest. 


within  ninety  days,  altbougli  it  ultimately  proved  fatal,  that 
ifit  were  otherwise,  an  injury  which  should  not  prove  tatal 
within  ninety  days,  would  furnish  no  ground  of  action  till  it 
should  be  made  to  appear  that  it  would  never  prove  fatal, 
which  would  render  the  insurance  nugatory  as  to  the  payment 
of  the  stipulated  sum  per  week,  in  case  of  a  personal  injury 
resulting  from  the  accident." 

§  589 .  Creditors'  Interest— The  creditor  has  an  insura- 
ble interest  in  the  life  of  his  debtor."  The  insurance  in  all 
such  cases  may  be  at  least  to  the  amount  of  the  debt;  or  the 
debtor  may  insure  any  amount  payable  to  the  creditor  in  trust 
to  pay  the  debt,  and  the  balance  to  such  parties  as  the  debtor 
may  designate."  Some  controversy  has  existed  whether  he  can 
recover  more  than  his  debt,  or  if  more  whether  he  can  recover 
the  sum  insured  if  he  has  no  claim  against  the  debtor  at  the 
time  of  his  decease.  On  this  question,  reference  may  be  had 
to  the  authorities  already  cited." 

75  PeiTy  V.  Providence,  etc.,  Ins.  Co.,  103  Mass.,  242.  Much  controversy  has 
occurred  in  reference  to  the  question  whether  a  creditor  who  insures  the  life 
of  his  debtor,  and  afterwards  the  debt  is  paid,  can  recover  on  the  pohcy. 
American  and  recent  En-hsh  authorities  sustain  the  right  so  to  do      Dalby 

V  India  and  London  Life  Ins.  Co.,  15  C.  B.,  365;  Law  v.  Indisputable  Life 
PoUcv  Co  1  Jur.,  N.  S.,  178,  L.  J.Ch.,  196.  But  itis  held  m  this  country  that 
the  creditormusthaveapecuniarymterestinthelife  of  the  debtoratthe  incep- 
tion of  the  risk.    St.  John  v.  Am.  Mut.  Life  Ins.  Co..  2  Duen  419;  s^c.  13  N 

Y  31 ;  Valton  v.  Nat.  Life  Ins.  Co.,  22  Barb.,  9,  s.  c,  20  N.  Y    32;  Rawls  v. 
Am.  Life  Ins.  Co.,  36  Barb.,  357;  s.  c,  27  N.  Y.,  282;  Mowry  v.  Home  Ins.  Co. 
q  R  I     1-  May  on  Ins.,  §  115,  et  seq.    And  a  father  has  an  msui-able  mterest 
inthe"lifeofaminorson.    May  on  Ins.,  §  §  104,.105,   e^  «e«.     And  a  sister 
may  insure  the  life  of  a  brother.   Id.,  §  103. 

76  May.  on  Ins.,  §  103. 

77  Id.,  §§  104,  105,  et  seq.;  American  Life  &  H.  Ins.  Co.  v.  Robertshaw, 
26  Pom..  189.  ,    .  . 

78  See  ante,  §  588,  and  note  75.  The  recent  Encrhsh  decisions  seem  to 
favor  a  recoveiy  of  the  fuU  amount  of  the  insurance  under  all  circumstances, 
where  there  was  a  debt  due  at  the  time  of  the  insurance.  The  American 
authorities  do  not  seem  to  go  to  that  extent. 


470  THE  LAW  OF  DAMAGES. 

Damages  for  Injuiies  to  the  Person. 


CHAPTER  XX. 


DAMAGES   IN   CASE    OF    TORTS— INJURIES    TO 
THE   PERSON. 

Section  599.  Damages  for  Injuries  to  the  Person. 

600.  Assault  and  Battery— Elements  of. 

601.  Aggravation. 

602.  Mitigation— Defense. 

603.  Character  of  the  Plaintiff— Defendant. 

604.  The  Defendant  may  Show  Circumstances— Res  gestae. 

605.  "Whether  the  Acts  done  or  the  "Words   Spoken  are  Part  of 

the  Bes  gestae. 

607.  Character— Knowledge  of,  may  Mitigate  Damages. 

609.  Pecuniary  Circumstances. 

611.  Aggravating  Circumstances— Conduct— Threats. 

613.  Aggravation  Owing  to  Intemperance. 

614.  Permanent  Injury. 

615.  Summary. 

616.  Complete  Defense— "What  is. 

617.  Injury  by  Infants  and  Non  Compotes. 

§  599.    Damages  for  Injuries  to  the  Person  .—Having 

considered  the  subject  of  damages  resulting  from  breaches  of 
contracts,  I  now  proceed  to  consider  the  rules  and  principles 
applicable  in  determining  damages  in  cases  of  torts.  We  had 
occasion  to  notice  this  subject  incidentally  in  treating  of  con- 
tributory negligence,  and  of  matters  in  aggravation  and  miti- 
gation of  damages;  but,  it  here  requires  a  fuller  consideration. 
The  trespasser  is  generally  liable  for  any  direct  injury  to 


TOKTS— INJUKIES  TO  PEESON.  471 

Assault  and  Battery— Elements  of  Damages. 

the  person  or  property  of  another,  or  for  any  direct  and  natu- 
ral result  of  a  wrongful  act,  whereby  the  person  or  property 
of  another  is  injured,  and  this,  whetlier  the  injury  was  inten- 
tional or  not.'  But  where  the  injury,  if  direct,  was  inadvert- 
ent and  unintentional,  the  damages  are  limited  to  the  direct 
and  immediate  consequences  of  the  act,  and  should  be  com- 
pensatory only;^  whereas  if  the  injury  was  the  result  of  gr@ss 
negligence  or  malice  the  injured  party  should  receive  indem- 
nity for  even  remote  injuries  as  well  as  exemplary  damages.' 

§  600-    Assault  and  Battery— Elements  of  Damages. 

— The  proper  amount  of  damages  in  case  of  an  assault  and 
battery,  generally  depends  much  upon  the  aggravating  or 
mitigating  circumstances  connected  with  it.  The  elements  of 
damages  in  ordinary  cases  may  be  thus  summarised: 

1.  Loss  of  time  and  labor  from  the  date  of  the  injury  until 
the  party  recovers  therefrom. 

2.  The  expense  of  medical,  surgical  and  other  attendance, 
and  the  value  of  clothing  injured  or  destroyed. 

3.  Diminished  capacity  to  work  at  the  trade  or  business 
of  the  party  injured. 

4.  Bodily  pain  and  mental  anguish.* 

'  1  Chitty  on  Plead.,  147;  1  Hill  on  Torts,  100,  et  seq.  See,  also,  §  617 
and  notes. 

'  Seely  v.  Alden.  61  Pa.  St.,  302;  Cushman  v.  WaddeU,  Baldw.  (N.  J.),  57. 
And  where  the  injury  results  from  an  act  done,  or  the  non-performance  of  a 
duty  imposed  by  law,  the  tort-feasor  is  responsible  for  aU  the  injury  that 
results  from  the  wrong.  Thus,  where  the  defendant  hung  his  sign  over  a 
public  street,  in  violation  of  a  city  ordinance,  he  was  held  Hable  for  the  dam- 
age done  by  its  fall  in  a  heavy  and  unusual  gale  of  wind.  Salsbury  v.  Her- 
shinroder,  lOG  Mass.,  458. 

3  Ibid.  See,  also,  Ives  v.  Humphreys,  1  E.  D.  S.  (N.  Y.),  196;  Little  v. 
Tingle,  26  Tnd.,  168.  See,  also,  Mil.  &  St.  Paul  R.  Co.  v.  Armes,  Alb.  L. 
J.,  March,  1876,  p.  212. 

4  2  Gr.  Ev.,  §  267;  Cox  v.  Vanderkleed,  21  Ind.,  164;  Hendrickson  v.  Kings- 
bury, 21  la.,  379;  Wiley  v.  Keokuk,  6  Kans.,  94;  Reeder  v.  Purdy,  48  lU., 
261,  (1869);  Wileyv.Man-o-to-wah6Kans.lll;  Slater  v.  Sherman,  5  Bush. 
(Ky.),  206,  (1865).    See,  also,  ante  %  72  et  seq;  post,  §  614.    That  mental 


472  THE  LAW  OF  DAMAGES. 

Aggravation— Mitigation— Defense. 


The  damages  may  always  include  a  fair  compensation  for 
injuries  actually  sustained  by  the  battery  including  probable 
future  disability  and  suffering.'  And  it  has  been  held  that 
the  injured  party  may  recover  the  amount  of  a  surgeon's  bill 
voluntarily  paid  by  the  township  trustees,  and  to  whom  he  was 
not  liable  for  the  same.' 

§  601.  Aggravation. — If  the  act  was  wanton  or  reckless, 
or  the  defendant  was  actuated  by  malice,  or  perpetrated  the 
wrono-  in  total  disregard  of  the  law,  and  the  plaintiff  was  in 
no  way  to  blame,  the  plaintiff  should  recover  not  only  for  the 
pecuniary  losses  sustained,  but  for  his  mental  anxiety,  ])ublic 
degradation,  and  the  wounded  sensibility  which  an  honorable 
man  might  be  supposed  to  feel  from  a  violation  of  the  sacred- 
ness  of  his  person;  for  pain  to  the  feelings  as  well  as  to  the 
body;  and  in  addition  thereto,  exemplary  or  vindictive  dama- 
ges, in  the  discretion  of  the  jury,  as  an  example  and  a  pun- 
ishment, where  such  damages  are  recognized  as  proper.' 

§  602.  Mitigation— Defense.— On  the  contrary,  if  the 
defendant  acted  under  an  honest  belief,  induced  by  the  con- 
duct of  the  plaintiff,  that  he  was  in  danger  of  an  assault  and 
battery  by  the  plaintiff,  which  could  only  be  repelled  by  an 
assault  and  battery  on  him,  and  the  defendant's  battery  con- 
suffering  and  pain  of  mind,  are  matters  of  compensation,  see  Smith  v. 
Railroad  Co.,  23  Ohio  St..  10;  Sedg.  on  Dam.  35,  36;  Fiogg  v.  RaUroad  Co. 
43  m.,  365;  Fay  y.  Parker,  53  N.  H.,  342;  Detroit  Daily  Post  Co.  v.  McAr- 
tliur,  16  Mich.,  447.  Ruth.  Inst.,  B.  1,  Chap.  17,  §§  1, 10.  2  Gr.  Ev.,  §§  89, 
267;  Harrison  v.  Swift,  13  Allen,  144.  See,  as  to  permanent  disability,  post, 
§614. 

s  Causee  v.  Andrews,  4  Dev.  &  B-  (N.  C),  246,  Slater  v.  Rink,  18  111.,  527. 
See,  also,  ante,  note  4. 

6  Klein  v.  Thompson,  19  Ohio  St.,  569. 

7  Wadsworth  v.  Treat,  43  Me.,  163;  West  v.  Forest,  22  Mo.,  344;  Wilson 
V.  Middleton,  2  Cal.,  54;  McNamarav.  King,  7  111.,  432;  Jefferson  v.  Adams, 
4  Harr.  (Del.),  321;  Cook  v.  Ellis,  6  Hill,  (N.  Y.),  466;  Detroit  Daily  Post 
Co.  V.  McArthur,  16  Mich.,  447;  Fay  v.  Parker.  53  N.  H.,  342;  Rutherford's 
Inst.  B.  1,  Chap.  17,  §  1,  10.  In  Maryland  the  plaintiff  may  show  he  is  a 
laboring  man  to  increase  damages.    Guthrie  v.  Blowers,  11,,  Md.,  336. 


TOETS— INJURIES  TO  PERSOK  473 

Character  of  the  Plaintiff. 

sisted  only  of  the  force  requisite  for  that  purpose,  as  he 
believed,  it  is  a  proper  matter  in  mitigation,  and  will  relieve 
the  defendant  of  vindictive  or  exemplary  damages." 

§  603.    Character  of   the   Plaintiff— Defendant .-- 

Whether  the  defendant  can  give  in  evidence  the  general  bad 
character  of  the  plaintiff  by  way  of  excuse,  especially  where 
such  character  had  no  connection  with  the  assault,  is  very 
doubtful,  although  it  has  sometimes  been  permitted  to  prove 
his  conduct  and  even  his  character  as  forming  or  constituting 
an  inducement  and  a  provocation  to  the  assault.*"  But  it  is 
generally  held  that  the  plaintiff's  bad  character  and  associa- 
tion with  persons  of  ill-repute  does  not  palliate  an  assault  and 
battery  or  mitigate  the  damages."  And  no  provocation  that 
does  not  amount  to  a  justification,  can  reduce  the  damages 
below  actual  compensation.'^ 

So,  in  an  action  for  damages  for  an  assault  and  battery,  evi- 
dence of  the  general  peaceable  character  of  the  defendant  is 
not  admissible  in  mitigation  of  damages,  or  to  rebut  the  pre- 
sumption of  malice;  nor  is  it  competent  to  show  that  state- 
ments made  by  the  plaintiff  at  the  time  of  the  assault  and 
connected  with  it,  were  false,  and  were  known  by  the  plaintiff 
to  be  false.'^  But  in  Maryland,  where  an  altercation  grew  out 
of  a  question  of  veracity  between  the  parties,  the  defendant 
was  allowed  to  show  that  the  truth  of  the  matter  was  with 
him,  in  mitigation  of  damages.'* 

9Keyes  v.  Devlin,  3  E.  D.  S.  (N.  Y.),  518. 

'°  Hill.,  on  Torts,  185,  Sec.  11;  Rhodes  v.  Bunch,  3  McC,  66;  McKinziev. 
AUen.  3  Strobh,  546. 

"  Bruce  v.  Priest,  5  Allen  (Mass.),  100. 

"  Birchard  v.  Booth,  4  Wis.,  67. 

'3  Thrall  v.  Knapp,  17  la.,  468.    See,  also,  Butt  v.  Gould,  34  Ind.,  552. 

'4  Markes  v.  MiUer,  9  Md.,  338;  Quinton  v.  Van  Tuyl,  30  la.,  554.  The 
defendant  may  show  that  immediately  preceding  the  assault  the  plaintiff 
accused  him  of  a  crime,  but  the  plaintiff  cannot  be  permitted  to  show  that 
the  charge  was  true.     Bartram  v.  Stone,  31  Conn.,  159. 


474  THE  LAW  OF  DAMAGES. 

Defendant  may  Show  Circumstances— Res  gestae. 

§  604.  Defendant  31ay  Show  Circumstances— Res 
gest.TB. — In  an  action  for  damages  for  an  assault  and  battery, 
all  circumstances  which  immediately  accompany  and  give 
character  to  the  transaction,  are  a  part  of  the  res  gestoSy  and 
are  material  in  mitigation  or  aggravation  of  damages.  ''  Thus, 
if  the  plaintiff  himself  provokes  the  assault  complained  of, 
by  words  or  acts  so  recent  as  to  constitute  part  of  the  res  gestce; 
or  if  the  injury  was  an  arrest  without  a  warrant,  and  the 
plaintiff  was  shown  to  have  been  justly  suspected  of  felony; 
or  in  an  action  for  seduction,  if  it  appear  that  the  crime  was 
facilitated  by  the  improper  conduct  or  connivance  of  the  hus- 
band, or  father;  these  circumstances  may  well  be  considered  as 
reducing  the  real  amount  of  the  plaintiff's  claim  for  dam- 
ages."" 

And  it  is  competent  to  show  in  mitigation  of  damages,  pro- 
voking and  insulting  language,  where  the  provocation  was  so 
recent  as  to  reasonably  induce  the  presumption  that  the  act 
was  committed  under  the  immediate  influence  of  the  passion 
thus  wrongfully  excited,  though  such  language  constitutes  no 
defense  to  the  actual  damages  sustained."  And  remarks  made 
during  and  immediately  after  the  assault,  and  relating  to  it, 
are  a  part  of  the  res  gestce." 

And,  where  a  military  order  was  issued  for  the  arrest  of  a 
certain  supposed  disloyal  person,  alleged  to  be  connected  with 
an  organization  for  the  assassination  of  some  government 
officers;  it  was  held,  that  although  it  did  not  excuse  or  justify 
the  arrest,  still  in  an  action  for  false  imprisonment  therefor,  it 
would  be  a  matter  to  palliate  the  act  and  mitigate  the  dam- 
's 2  Greenlf.  Ev.,  §  267;  Lee  v.  Woolsey,  19  Johns.,  319;  Fraser  v.  Berkley,  7 
Car.  &  P.,  621;  Avery  v.  Ray,  1  Mass.,  12;  Simpson  v.  McCaffrey,  13  Ohio, 
508. 

'fi  ThraU  v.  Knapp,  17  la.,  468;  Ireland  v.  EUiott,  5  Id.,  478. 

'7  Shirley  v.  Billings,  8  Bush.  (Ky.),  147.  And  it  is  competent  to  show 
violence  by  another,  who  is  not  a  party  to  the  action,  where  there  are  cir- 
cumstances tending  to  show  that  such  person  was  co-operating  with  the 
plaintiff.    Millen  v.  Sweitzer,  22  Mich.,  391. 


TORTS— INJURIES  TO  PERSON.  475 


Whether  Acts  Done  or  Words  Uttered  are  Part  of  the  Kes  gestae. 

ages.''  So,  to  entitle  a  partj  to  exemplary  damages,  it  must 
appear  that  the  wrong  of  which  the  plaintiff  complains  was 
done  with  an  evil  intent,  or  from  bad  motives;  and  where  it 
appeared  that  an  arrest  was  made  by  the  defendants  in  the 
performance  of  what  they  supposed  to  be  their  duty  as  public 
officers,  with  good  motives  and  without  malice,  it  was  held, 
that  only  compensatory  damages  should  be  given/"  No 
words  of  provocation  will  constitute  a  defense,  though  they 
may  be  grounds  for  the  reduction  of  damages.  The  question 
on  this  point,  generally  is,  whether  the  blood  had  time  to 
cool,  and  whether  the  provocation  and  assault  formed  parts  of 
one  transaction.^'  But,  where  the  defense  was  that  the  plain- 
tiff committed  the  first  assault,  and  that  the  defendant  acted 
in  self-defense,  evidence  of  previous  difficulties  between  the 
jjarties,  and  threats  by  the  plaintiff,  is  admissible,  as  tending 
to  show  who  was  the  ag-o^ressor." 

§  605.  Whether  the  Acts  Done  or  Words  Uttered 
are  a  Part  of  the  Res  gestae.— The  question  as  to  whether 
acts  done  or  words  uttered  are  part  of  the  res  gestae^  and 
provable  in  mitigation  of  damages,  is  frequently  an  important 
one.  Great  allowance  is  made  for  the  weakness  and  imperfec- 
tion of  human  nature;  and  if  such  acts  are  done  and  words 
uttered  recently  previous  to  the  assault,  or  are  a  part  of  a 
series  of  insults  and  irritating  provocations,  these  circum- 
stances are  proper  for  the  jury  to  consider,  in  order  to 
determine  whether  the  defendant  was  wholly  influenced  by 
malice,  or  whether  he  was  not  influenced  by  heat  and  passion, 

'9  Carpenter  v.  Parker  et  al.,  23  la.,  450.  See,  also,  Klein  v.  Thompson, 
19  Ohio  St.,  569. 

^  McCall  V.  McDoweU,  1  Abb.  (U.  S.),  212  (1867).  See,  also,  Plummer  v. 
Harbut,  5  la.,  308. 

="  Avery  v.  Ray,  1  Mass.,  12;  Barry  v.  Ingles,  1  Tay.  (N.  C),  72;  Lee  v. 
Woolsey,  19  Johns.,  519;  WilHs  v.  Forest,  2  Duer.,  310;  Collins  v.  Todd,  17 
Miss.,  537;  Burchard  v.  Booth,  4  Wis.,  67;  Corning  v.  Corning,  1  Seld.,  97. 

"  Murphy  v.  Dart,  42  How.  Pr.  (N.  Y.),  31. 


476  THE  LAW  OF  DAMAGES. 

Where  Acts  Done  or  Words  Uttered  are  Part  of  the  Kes  gestSB. 

produced  by  the  fault  of  the  plaintiff,  and  to  show  how  much 
of  the  defendant's  damage  was  the  result  of  the  provocation 
thus  given. 

Tlius,  it  is  held,  that  although  acts  done  and  words  spoken 
long  before  the  assault  occurred,  are  generally  inadmis- 
sible for  the  purpose  of  showing  provocation  and  of  mitigating 
the  damages,  yet  where  such  acts  or  words  are  a  portion  of  a 
series  of  2:)rovocations  frequently  repeated  and  continued  down 
to  the  time  of  the  assault,  they  may  be  shown  in  mitigation." 

§  006.  And  in  Kew  York,  it  was  recently  held  in  an  action 
for  an  assault  and  battery,  that  where  the  defendant  offered 
to  prove  in  mitigation  of  damages  a  series  of  provocations, 
repeated  and  continued  from  day  to  day,  and  that  every  time 
the  parties  met  the  plaintiff  undertook  to  insult  the  defendant 
with  opprobrious  language,  and  to  such  an  extent  as  to  render 
him  wild,  excited,  frantic,  and  partially  insane;  and  that  the 
plaintiff  had  committed  a  most  grievous  injury  affecting  the 
domestic  relations  of  the  defendant,  which  was  one  of  the 
insults  with  which  the  latter  was  taunted;  and  this  evidence 
was  overruled  on  the  trial,  and  the  defendant  was  only  per- 
mitted to  show  what  took  place  on  the  day  of  the  assault  or 
the  day  before,  but  not  the  other  matters  referred  to,  it  was 
held  on  appeal,  that  the  ruling  was  erroneous  and  a  new  trial 
was  granted. 

The  court  further  held  in  reference  to  the  matter  offered  in 
mitigation,  that  each  case  should  be  controlled  by  its  own 
peculiar  circumstances;  that  the  question  was  not  how  many 
hours  have  elapsed  since  the  provocation  was  given,  but 
whether  in  view  of  the  circumstances  of  the  case,  the  party 
who  made  the  assault,  had  a  reasonable  time  to  cool  his  blood; 
that  if  it  was  the  plaintiff's  design  to  provoke,  excite,  irritate, 
and  insult  the  defendant,  on  every  occasion  of  their  meeting, 

'3  SteUar  v.  NeUis,  60  Barb.  (N.  Y.),  525  (1871);  42  How.  Pr.,  163.  But 
the  jury  cannot  consider  a  charge  of  false  swearing,  made  by  the  defendant, 
in  aggravation  of  damages.     Pulver  v.  Harris,  61  Barb.  (N.  Y.),  78. 


TOKTS-mJUEIES  TO  PERSOl^.  477 


Character-Knowledge  of  may  Mitigate. 


and  by  a  series  of  such  annoying  and  irritating  provocations, 
he  kept  the  defendant  in  an  excited  and  frantic  state  ot  mmd, 
it  was  his  own  fanlt  that  the  defendant  was  not  cooL  In  such 
a  case  the  jury  ought  to  be  permitted  to  hear  the  nature  and 
extent  of  the  provocation;  to  hear  and  know  how  much  of  the 
beating  complained  of  was,  if  not  deserved,  at  least  excused  by 
provocation  given.'' 

But  where  the  plaintiff  had  wrongfully  entered  the  house 
of  the  defendant's  father,  and  was  leaving  it  at  the  time  the 
defendant  made  an  assault  upon  him;  it  was  held,  that  the 
defendant  could  not  show  in  mitigation  of  damages  the  bad 
reputation  of  the  plaintiff,  and  that  he  was  accompanied  by 
a  disreputable  paramour;  although  the  plaintiff  expressly 
claimed  damages  on  the  ground  of  indignity;  and  an  injury 
to  his  character."  But  the  conduct  and  character  of  the  plain- 
tiff should  perhaps  be  permitted  to  be  shown,  where  they  con- 
stitute the  cause,  and  the  provocation  to  the  particular  injury, 
for  the  purpose  of  reducing  compensatory  as  well  as  exem- 
plary damages." 

§  607.  Character— Knowledge  of  may  Mitigate  — 
Although  the  general  bad  character  of  the  plaintiff  cannot 
generally  be  shown  in  extenuation  or  excuse  of  an  assault  and 
batterv,  or  in  mitigation  of  damages,  yet  as  the  degree  of  force 
which'the  party  assaulted  may  use  in  repelling  the  assault  may 
depend  upon  the  known  character  of  the  assailant,  whether 
peaceable  or  quarrelsome;  it  may  sometimes  be  material  to 
show  this  character  in  mitigation  of  damages,  as  it  might  tend 
to  show  a  want  of  malice.  The  plaintiff  in  such  a  case  can 
recover  only  for  the  damages  resulting  from  the  excess  of  force, 
used  bv  the  defendant,  beyond  what  was  necessary  to  defend 
against  the  wrongful  acts  of  the  plaintiff,  as  on  a  plea  of  son 

=4  Dolan  V.  Fagan,  63  Barb.  (N.  Y.),  73  (1872). 

»5  Bruce  v.  Priest.  5  Allen,  100. 

=6  Moreley  &  W.  v.  Dunbar,  24  Wis.,  183. 


478  THE  LAW  OF  DAMAGES. 

Pecuniary  Circumstances. 

assault  demesne;  and  the  amount  of  force  a  party  could 
reasonably  use,  might  depend  upon  the  plaintiff's  general 
character." 

§  608.  And  the  same  principle  would  be  applicable  to  the 
measure  of  damages  for  defending  against  a  trespass  to  prop- 
erty, as  on  a  plea  of  molliter  rnanvs  imposuU,  or  of  defend- 
ing persons  standing  in  near  relations  of  affinity  or  consan- 
guinity to  the  defendant;  as  in  the  defense  of  a  wife  or  child, 
father  or  mother;  and  declarations  made  by  the  injured  party 
during  the  affray  tending  to  show  the  extent  of  his  injuries 
are  a  part  of  the  res  gestae.^* 

Where  the  acts  and  declarations  of  the  plaintiff,  which  the 
defendant  pleads  in  mitigation  of  damages,  occurred  some 
time  previous  to  the  assault,  and  have  no  direct  connection 
with  it,  they  are  not  admissible  to  show  an  intention  of  wan- 
ton violence  on  the  part  of  the  plaintiff  at  the  time  of  the 
assault.^' 

§  G09.  Pecuniary  Circumstfances.— Same  controversy 
exists  in  reference  to  the  right  to  show  the  pecuniary  condition 
of  the  parties  in  mitigation  or  aggravation  of  damages.  In 
Iowa,  it  is  held  that,  even  in  an  action  in  which  exemplary 
damages  are  properly  allowable,  evidence  of  the  financial 
ability  and  standing  of  the  defendant  is  not  admissible  in 
aggravation  of  damages.'"  And  in  Hunt  v.  The  C.  <&  H.  W. 
R.  R.  Co.,  Wright,  J.,  delivering  the  opinion,  remarks: 
"While  some  of  the  cases  have  held  that  the  pecuniary  condi- 

*7  Harrison  v.  Harrison,  43  Vt.,  417. 

^  Green  v.  BedeU,  48  N.  H.,  546  (1869).  See,  also,  Kline  v.  Thompson, 
19  Ohio  St.,  569;  Steele  v.  Rawles,  65  N.  H.,  a34;  Ogden  v.  Clayeomb,  52 
HI.,  365;  Adams  v.  Wagoner,  33  Ind.,  531  (1870);  Blake  v.  Daman,  103 
Mass.,  199,  (1869);  Knukle  v.  State,  32  Ind.,  220.  In  the  case  of  Adams  v. 
Wagoner,  above  cited,  it  was  held,  that  in  case  of  an  agreement  to  fight, 
and  an  injury  resulting  to  the  plaintiff  thereby,  the  defendant  could  not  show 
that  the  injury  complained  of,  was  done  in  the  heat  of  passion  during 
such  fight,  and  without  previous  maKce. 

^  Castner  v.  Sliker,  33  N.  J.  (4  Vr.),  95. 

3°  Guengerich  v.  Smith,  34  la.,  348.    Beck,  C.  J.,  dissenting. 


TOETS— INJURIES  TO  PERSON.  479 

Pecuniary  Circumstances. 

tion  of  a  defendant  may  be  shown  when  the  plaintiff  is  entitled 
to  vindictive  damages,  or  in  cases  of  malicious  torts;  yet  it  is 
believed  that  the  weight  of  authority  is  the  other  way."" 
The  learned  judge  further  remarks:  "  Aside  from  the  excep- 
tional cases  of  slander  and  breach  of  promise  of  marriage, 
courts  should  hesitate  long  before  receiving  such  evidence  or 
allowing  the  jury  to  take  into  consideration  the  pecuniary 
ability,  even  under  circumstances  of  aggravation,  insult  or 
cruelty,  or  vindictiveness  and  malice."'"^  But  in  the  dissenting 
opinion  of  GuengeHoh  v.  Smith,  supra,  which  was  an  action 
for  damages  for  assault  and  battery,  Beck,  C.  J.,  remarks: 
"  In  my  opinion  the  evidence  as  to  the  financial  ability  of 
defendant  was  properly  admitted,  and  the  instruction  upon 
that  subject  is  correct.  That'  the  case  is  one  in  which  exem- 
plary or  punitive  damages  may  be  properly  allowed  is  not 
questioned.  The  law  permits  such  damages  to  be  recovered 
for  the  correction  or  punishment  of  the  defendant  and  as  for  an 
example  to  the  community.  Kow  it  is  plain  that  a  verdict  of 
a  few  dollars  which  would  operate  as  a  punishment  if  assessed 
against  a  poor  man,  would  utterly  fail  to  have  that  effect  upon 
a  man  of  wealth.  Yerdicts  for  punitive  damages  ought 
therefore  to  be  graduated  according  to  the  ability  of  the 
defendant  to  pay."" 

But  the  plaintiff  may  show  the  nature  of  his  business  and 
the  value  of  his  services  in  conducting  it,  as  a  ground  of 
estimating  damages.  And  this  on  the  ground  that  an  injury 
received  of  a  permanent  character  may  incapacitate  a  man 
from  performing  certain  kinds  of  labor,  and  not  others.  Thus 
the  loss  of  an  arm  might  incapacitate  a  mechanic  for  labor 

31 1  Hill,  on  Torts,  405,  notes  3  and  4;  Sedg.  on  Dam.,  640,  note  1 ;  Knif- 
fen  V.  McConnell,  30  N.  Y.,  285. 

3=  Hunt  V.  The  C.  &  N.  W.  R.  R.  Co.,  26  la.,  364.  See,  also,  Baldwin  v. 
Western  R.  Co.,  4  Gray,  (Mass.),  334;  2  Gr.  on  Ev.,  §  269. 

33  See,  also,  in  support  of  this  doctiine  in  an  action  for  defamation,  Buckly 
V.  Knapp,  48 Mo.,  152;  and  2}ost,  §  695;  Kamey  v.  Paisley,  13  la.,  89;  Bel- 
knap V.  Boston,  etc.,  R.  R.  Co.,  49  N.  H.,  358. 


480  THE  LAW  OF  DAMAGES. 

Aggravating  Circumstances. 

while  a  bookkeeper  could  perhaps  still  use  his  pen  and  perform 
the  labor  of  his  vocation." 

§   611.     Aggravating   Circumstances  —  Conduct — 

Threats. — In  a  case  where  the  conduct  complained  of,  was 
that  the  plaintiff  was  found  on  the  defendant's  land  picking 
berries,  it  was  held,  that  it  was  not  error  to  refuse  an  instruc- 
tion, (though  correct  in  the  abstract,)  that  the  malicious  con- 
duct of  the  assailed,  at  the  time  of  the  assault,  provoking  the 
injury,  might  be  considered  for  the  purpose  of  reducing  not 
only  punitive  but  also  compensatory  damages.''*  And, 
although  former  threats  or  insults  will  not  palliate  an  assault 
when  they  are  not  a  part  of  the  res  gestcB^  yet  if  the  injury 
be  done  in  attempting  to  prevent  the  execution  of  such  threats, 
the  fact  may  be  shown  in  mitigation  of  damages.^" 

§  612.  We  have  already,  in  treating  of  the  elements  of 
damages,  considered  the  subject  of  aggravation  and  mitiga- 
tion, in  connection  with  personal  injuri'es,  as  well  as  the  duty 
of  the  injured  party  to  use  reasonable  means  to  prevent  inju- 
rious consequences."  Wliere  there  is  an  injury  to  the  person 
of  another,  which  with  ordinary  care  could  not  have  been 
avoided  by  the  injured  party,  the  law  gives  a  remedy  in  dam- 
ages; and  in  an  action  for  assault  and  battery,  where  the  act 
is  willfully  and  maliciously  done,  the  law  will  not  only  com- 
pensate the  injured  party  for  his  actual  loss,  but  give  punitive 
or  exemplary  damages;  but  where  the  act  was  hot  willfully 
done,  these  damages  are  not  allowed;  and  it  has  been  held, 

34  Hunt  V.  Chicago  &  N.  W.  R.  R.  Co.,  26  la.,  363;  Cochran  v.  Ammon, 
16  m.,  316;  Lincoln  v.  Saratoga,  etc.,  R.  Co.,  23  Wend.,  425.  See,  also, 
Baldwin  v.  West.,  etc.,  R.  Co.,  4  Gray,  (Mass.),  334. 

asMorely  v.  Dunbar.  24  Wis.,  183,  See,  also,  McConaughy  v.  McMuUen, 
27  Wis.,  93;  State  v.  Martin,  30  Wis.,  216. 

36  Waters  v.  Brown,  3  Marsh.,  559.  See,  also,  Sledge  v.  Pope,  2  Hayw. 
(N.  C).  402;  Ogletree  v.  State.  23  Ala.,  693;  Morris  v.  Moses,  28  N.  H.,  95; 
McMastersv.  Cohen,  5  Ind.,  174. 

37  See,  ante,  Chaps.  6,  7,  and  8. 


TOETS— INJURIES  TO  PERSON.  481 


Aggravation  Owing  to  Intemperance -Permanent  Injury. 


that  even  mental  suffering  forms  no  proper  element  of  dam- 
ao-es  in  sncli  cases/'  But  on  this  point,  as  we  have  seen,  there 
is  a  diversity  of  decisions/' 

§  613.  Aggravation  Owing  to  Intemperance  — 
The  person  guilty  of  a  willful  assault  and  battery  cannot  be 
permitted  to  show  in  mitigation  of  damages  that  the  injury 
was  more  aggravated  by  reason  of  the  intemperate  habits  of 
the  plaintiff,  than  it  would  have  been  if  his  habits^  had  been 
temperate." 

§  614.  Permanent  Injury.— It  should  be  observed  that 
damages  in  case  of  assault  and  battery,  although  generally 
limite'd  to  the  injury  at  or  before  the  commencement  of  the 
suit,  or  to  the  time  of  trial,  yet,  it  frequently  occurs  that  in 
determining  the  present  injury,  matters  of  a  prospective  char- 
acter must  also  be  considered;  and  particularly  where  the 
injury  is  of  a  permanent  character,  damages  for  the  future 
injury  should  be  allowed.  Thus,  where  the  claim  was  for 
breaking  a  leg,  it  was  held  proper  to  show  the  probable  future 
condition  of  the  limb,  but  not  the  consequences  of  a  hypo- 
thetical second  fracture."  In  such  a  case,  it  is  proper  also  to 
consider  diminished  capacity  to  work  at  the  plaintiff's  trade, 

38  Flemington  V.  Smithers,  2  C.  &  P.,  292;  Lynch  v.  Knight,  H.  L.  C, 
577-  Finney  v.  Railroad  Co.,  10  Wis.,  383;  McKinley  v.  Chic.  &  N.  W.  R. 
Co. '(Sup.  Ct.  Iowa,  Dec.  T.,  1875),  West.  Jur.,  Vol.  10,  209.  And  m  some 
cases  damages  have  been  limited  to  the  mental  suffering  from  actual  physi- 
cal injury  "Cannmg  v.  Inhabitants  of  WilUamstown,  1  Gush.,  431 ;  Johnson 
V.  Wells,  Fargo  &  Co.,  6  Nev.,  224.  We  have  referred  to  the  diversity  of 
decisions  on  the  question,  whether  a  fine  or  punishment  imposed  after  a 
criminal  prosecution  and  conviction  for  the  same  transaction,  could  be  shown 
in  mitigation  of  damages.  See,  ante,  §  86,  et  seq.,  and  §122.  It  would 
appear  proper  to  show  this  in  mitigation  of  exemplary  damages.    Smithwith 

.  V.  Ward,  7  Jones  (N.  C.  L.),  64.      But,  see  Reed  v.  KeUey,  4  Bibb  (Ky.), 
400. 

39  See,  ante,  §  73,  et  seq.,  and  §  600  and  note,  and  post,  §  61o. 

40  Littlehale  v.  Dix,  11  Cush.,  364;  Wheat  v.  Lowe,  7  Ala.,  311. 

4'  Lincoln  v.  Saratoga  R.  Co.,  23  Wend.,  425.   See,  also,  Johnson  v.  Perry, 
2  Humph.,  572;  Curtiss  v.  Rochester  &  S.  R.  R.  Co.,  20  Barb.,  282. 
31 


482  THE  LAW  OF  DAMAGES. 

Summary. 

arising  from  the  injury."  This  doctrine  was  held  in  an  action 
against  a  municipal  corporation,  for  personal  injuries  arising 
from  a  failure  to  keep  its  streets  in  repair.  The  jury  was 
instructed  that  if  they  found  the  injury  of  a  permanent  char- 
acter, they  should  consider  that  fact  as  an  element  in  enlianc- 
ing  the  damages,  and  this  was  held  correct." 

§  015.  Summary. — As  a  summary  of  the  elements  of 
damages  in  such  cases  it  may  bo  remarked:  1.  That  in  all 
cases  of  simple  trespass,  where  no  elements  of  outrage  or 
malice  enter  into  the  commission  of  the  otfcnse,  only  compen- 
satory damages  should  be  allowed,  or  such  as  will  compensate 
the  party  for  actual  injuries,  including  loss  of  time,  medical 
and  other  expenses,  physical  pain  and  mental  anguish;  as 
these  are  fairly  and  reasonably  the  plain  consequences  of  the 
injury.^' 

**  Donnall  v.  Sanford,  11  La.  An..  645.  See.  also,  Fil(?r  v.  The  N.  Y.  C. 
R.  R.  Co.,  49  N.  Y.,  42;  Toledo,  Wab.  &  West.  R.  R.  Co.  v.  Baddely,  54 
111.,  19;  Frink  v.  Schroyer.  18  111.,  416;  Slater  v.  Rink,  18  111.,  527;  Passen- 
ger R.  Co.  V.  Donahoe,  70  Pa.  St.,  119;  Kansas  Pacific  R.  R.  Co.  v.  Pointer, 
9  Kans.,  620;  City  of  Chicago  v.  Longlass,  52  111.,  2-56;  Fair  v.  Lond.  &  N. 
W.  R.  R.  Co.,  21  L.  T.  (N.  &.),  326;  Holyoke  v.  Railway,  48  N.  H.,  541;  Wies- 
enburgh  v.  City  of  Appleton,  26  Wis.,  56. 

*s  Collins  V.  The  City  of  Council  Bluffs,  .32  la.,  324.  See,  also,  the  same 
doctrine  applied  in  actions  for  the  negligence  of  common  carriers.  Holbrook 
V.  The  Utica  &  S.  R.  Co.,  2  Kern..  236;  Steamer  New  World  v.  King,  16 
How.,  472;  Russ  v.  The  Steamboat  War  Eagle,  14  la.,  363;  Filer  v.  The  N. 
Y.  Cent.  R.  R.  Co.,  49  N.  Y.,  42  (1872);  Walker  v.  Erie  R.  R.  Co.,  63  Barb., 
N.  Y.,  260  (1872);  Johnson  v.  WeUs,  Fargo  &  Co.,  6  Nev.,  224.  And  m  an 
action  by  a  master,  for  loss  of  service  of  an  apprentice  disabled  by  the 
defendant,  it  was  held,  the  jury  might  allow  for  such  loss  down  to  the  time 
the  disability  may  be  expected  to  continue.  HodsoU  v.  Stallebrass,  11  A.  & 
E.,  301;  3  P.  &  D.,  200;  9  C.  P.,  63.  See,  also,  Britton  v.  S.  W.  R.  Co.,  27 
L.  J.  Exch.,  3.55. 

"«  Peoi-ia  Bridge  Assn.  v.  Loomis,  20  111.,  235;  Hunt  v.  Hoyt,  Id.,  .544;  The 
Inhabitants  of  Elsworth,  32  Me.,  271;  Morse  v.  The  Auburn  &  Syracuse  R. 
R.  Co.,  10  Barb.  (N.  Y.),  621;  Rawson  v.  N.  Y.  &  Erie  R.  R.  Co.,  15  N. 
Y.,  415;  Keys  v.  DevUn,  BE.  D.  S.  (N.  Y.),  518;  West  v.  Forest, 
22  Mo.,  344;  Bannon  v.  Bait.  &  0.  R.  R.  Co.,  24  Md.,  108;  Seger  v.  Bark- 
hamsted,  22  Conn.,  290;  Lawrence  v.  Housatonic  R.  Co.,  29  Conn.,  390; 
Fairchilds  v.  Cal.  Stage  Co.,  13  Cal.,  599;  Johnson  v.  Wells,  Fargo  &  Co.,  5 


TORTS— INJUEIES  TO  PERSON.  483 

Complete  Defense. 

2.  That  where  elements  of  outrage,  oppression,  or  malice, 
enter  into  the  commission  of  the  offense,  exemplary  or  puni- 
tive damages  may  be  allowed ;  and  the  jury  are  not  limited  to 
actual  compensation,  but,  "  blending  together  the  rights  of 
the  injured  party  and  the  interests  of  the  community,  thej'- 
may  give  such  a  verdict  as  will  compensate  for  the  injury 
received,  and  at  the  same  time  inflict  some  punishment  upon 
the  defendant  for  his  wrongful  act."" 

3.  That  where  the  injury  is  of  a  permanent  character,  the 
jury  may  consider  that  fact  in  assessing  damages,  and  the 
probable  future  disability  of  the  injured  party,  and  his  dimin- 
ished capacity  for  future  work  in  his  business  or  trade,  owing 
to  the  injury." 

§616.  Complete  Defense- — It  may  also  be  proper  to 
state  that  in  this  action,  certain  facts  constitute  a  complete 
defense  to  the  claim  for  damages,  and  where  either  of  these 
facts  are  shown  no  recovery  can  be  had.    These  are  as  follows: 

1.  "Where  the  injury  was  done  in  self-defense. 

2.  Where  it  was  done  to  prevent  a  breach  of  the  peace, 
suppress  a  riot,  or  to  prevent  the  commission  of  a  felony. 

3.  Where  it  was  done  in  the  reasonable  defense  of  one's 
house,  lands  or  goods. 

Nev.,  224;  Penn.  Canal  Co.  v.  Graham.  63  Pa.  St.,  290;  Smith  v.  Holcomb, 
99  Mass.,  552;  Holyoke  v.  Grand  Trank  R.  R.  Co.,  48  N.  H.,  541, 
Stockton  V.  Fry,  4  GiU.  (Md.).  406;  Mathewson  v.  N.  Y.  C.  R.  Co.,  62  Barb., 
364;  Smith  v.  Overby,  30  Geo.,  241;  Cox  v.  Vanderkleed,  21  Ind.,  164; 
Gould  V.  Christianson.  1  B.  &  H.,  507;  McGrewv.  Stone,  53  Pa.  St.,  436; 
Sharp  V.  PoweU,  7  C.  P.,  250. 

<7  Hendricks  v.  Kingsberry,  21  la.,  379.'    Sedg.  on  Dam,,  39. 

*«  See,  ante,  §  614.  Also,  City  of  Ripon  v.  Bittel,  30  Wis.,  614;  Nebraska 
City  V.  Campbell.  2  Black,  590;  Ballow  v.  Famum,  11  AUen,  73;  Caldwell  v. 
Murphy,  1  Duer.,  233;  Affirmed,  1  Kem,  416;  Kinny  v.  Crocker,  18  Wis.,  74; 
Hanover  R.  R.  Co.  v.  Coyle,  55  Penn.,  396;  Aaron  v.  Sec.  Ave.  R.  Co.,  2 
Daily.  (N.  Y.),  127;  Aldrich  v.  Pahner,  24  Cal.,  513;  Wheaton  v.  North 
Beach  &  Mission  R.  Co.,  36  Cal.,  590;  111.  Cent.  R.  R.  Co.  v.  Barron,  5  Wal- 
lace (U.  S.),  90;  Page  v.  Mitchell,  13  Mich.,  63;  Josslyn  v.  McAlister,  22 
Mich.,  300. 


484  TPIE  LAW  OF  DAMAGES. 

Injury  by  Infants  and  Non  Compotes. 

4.  Where  it  was  done  necessarily  in  the  execution  of  legal 
process. 

5.  Where  it  was  done  in  the  reasonable  defense  of  one's 
wife,  husband,  parent,  child,  master  or  servant.  But  in  such 
cases,  if  the  defendant  uses  more  force,  or  inflicts  more  injury 
than  necessary,  he  is  liable  for  the  injury,  in  excess  of  what 
was  required  for  the  purpose.  "But  in  these  cases,"  remarks 
Prof.  Greenleaf,  "as  we  have  seen  in  others,  no  more  force  is 
to  be  used  than  is  necessary  to  prevent  the  violence  impend- 
ing nor  is  any  force  to  be  applied  in  defense  of  the  possession 
of  property,  until  the  trespasser  has  been  warned  to  desist,  or 
requested  to  depart,  except  in  the  case  of  a  violent  entry  or 
taking  by  a  trespasser,  or  the  like;  for  otherwise  the  party 
interfering  to  prevent  wrong,  will  himself  be  guilty  of  an 
assault."" 

§  617.    Injury  by  Infants  and  Non  Compotes.— Some 

controversy  has  arisen  in  reference  to  the  liability  of  infants 
and  persons  of  unsound  mind,  for  their  torts.  On  the  one 
hand  it  is  asserted  as  a  common  law  doctrine  that  an  infant 
or  lunatic  is  liable  for  all  actual  damages  for  injuries  inflicted 
to  the  same  extent  as  adults  and  those  of  sound  mind.  It  has 
been  considered  a  matter  of  obvious  justice  that  where  one 
person,  however  innocentl}',  causes  an  injury  and  loss  to 
another,  without  any  fault  of  the  injured  party,  the  former 
should  be  held  to  indemnify  the  latter  for  the  loss  sustained.'" 

«  2  Greenlf.  on  Ev.  §  95,  and  cases  cited  in  note. 

5°Burnard  v.  Haggis,  14  C.  B.  (N.  S.),45;  Weaver  v.  Ward,  Hobart,  134; 
Penrose  v.  Curren,  3  Rawle,  351;  Bessey  v.  Oliott,  T.  Ray.,  467;  Sutton  v. 
Clark,  6  Taunt.,  44;  FiUiter  v.  Phippard,  11  A.  &  E.,  (N.  S.),  347;  Bullock 
V.  Babcock,  3  Wend.,  391;  Hatfield  v.  Roper,  21  Wend.,  615;  Morse  v. 
Crawford,  17  Vfc.,  499;  Williams  v.  Cameron,  26  Barb.,  172;  Conklin  v. 
Thompson,  29  Barb.,  218. 

In  a  recent  able  article  by  Timothy  Brown,  Esq.,  of  the  Iowa  Bar,  pub- 
lished in  The  Southern  Law  Review,  he  maintains,  that  lunatics  and  insane 
persons  are  not  liable  for  their  torts.  He  says:  "  Torts  are  of  two  classes 
— intentional  and  willful  injuries  to  the  person,  property,  or  character  of 


TOKTS— INJURIES  TO  PERSON.  485 


Injm-y  by  Infants  and  Non  Compotes. 


And  in  reference  to  the  tortious  negligence  of  such  persons 
it  has  been  said:  "Infants  and  persons  of  unsound  mind  are 
liable  for  injuries  caused  by  their  tortious  negligence,  and  so 

another,  or  those  injuries  arising^  from  want  of  care.  Willful  or  intentional 
wrong  can  only  exist  where  there  is  a  mind  to  act.  Without  mind  to  act, 
no  intent  can  be  formed.  Hence,  in  slander  and  libel  no  action  will  lie 
against  a  person  who  is  insane.  In  Homer  v.  Marshall,  5  Mun.,  466,  where 
a  judgment  was  rendered  against  the  defendant,  it  was  perpetually  enjomed 
upon  the  ground  that  the  defendant  was  insane  at  the  time  of  speaking  the 
words  and  the  rendition  of  the  judgment,  in  reference  to  the  subject  of  the 
slander.  It  is  held,  that  insanity  at  the  time  of  the  speaking  of  the  words  or 
publisliing  the  libel,  is  a  competent  defense.  Bryant  v.  Jackson,  6  Humph., 
199;  Yates  v.  Reed,  4  Blackf.,  463;  Dickinson  v.  Barber,  9  Mass.,  225;  City 
of  London  v.  Vanacker,  Carthew,  483;  Towusend  on  Slander  and  Libel,  439. 
Coke  said,  a  madman  is  only  punished  by  his  madness.  Sedgwick,  in  his 
work  on  Damages,  in  referring  to  the  cases  of  Kroom  v.  Schoonmaker, 
Morse  v.  Crawford,  and  Bush  v.  Pettibone,  says:  'In  case  of  the 
compos  mentis,  although  the  intent  be  not  decisive,  still  the  act  punished  is 
that  of  a  party  competent  to  forsee  and  guard  against  the  consequences  of 
liis  conduct;  and  inevitable  accident  has  always  been  held  an  excuse.  In 
case  of  the  lunatic,  it  may  be  urged,  both  that  no  good  policy  requires  the 
interposition  of  the  law,  and  that  the  act  belongs  to  the  class  of  cases  which 
may  be  termed  inevitable  accidents.'  Sedg.  on  Dam.,  6th  ed.,  555;  Marg., 
p.  455,  456. 

Negligence  in  civil  actions  may  be  defined  as  an  inadvertent  act  or  omis- 
sion in  a  responsible  human  being,  while  engaged  in  a  lawful  employment, 
that  produces  as  a  natural  result  damage  to  another,  which  might  have  been 
avoided  by  the  use  of  ordinary  care.  A  person  who  is  clearly  insane,  or  an 
idiot,  or  a  child  of  very  tender  years,  is  not  a  cause  of  injury,  but  a  condi- 
tion. He  belongs  to  those  natural  forces  which,  like  weapons  of  wood,  stone 
or  iron,  are  incapable  of  moral  choice,  but  act  only  as  they  are  employed  or 
impelled.  They  cannot  be  a  judicial  cause,  but  may  be  used  in  producing 
the  effect  when  controlled  or  made  to  act  by  another.  See  Wharton  on 
Negligence,  §§87,  88,  306,  307,  309,  310;  Bartonshill  Coal  Co.  v.  Reed,  3 
Macq.,  266;  Bartonshill  Coal  Co.  v.  McGuire,  Id.,  300;  Grizzle  v.  Frost,  3  F. 
&  F.,  623;  Coombs  v.  New  Bedford  Cordage  Co.,  102  Mass.,  572;  Chicago  & 
Alton  R.  R.  v.  Gregory,  58  m.,  226.  ****** 

In  Railroad  V.  Gladman,  15  Wall.,  401,  Carter,  C.  J.,  charged  the  jury 
relative  to  the  contributory  negligence  of  a  child  as  follows:  '  You  have  got 
to  adopt  one  of  two  rules  here:  either  to  judge  this  child's  conduct  under 
the  measure  of  his  years  and  the  measure  of  his  discretion,  or  pronounce 
that  no  action  lies  in  behalf  of  a  cliild,  or  demand  of  the  child  a  measure  of 
judgment  that  nature  has  not  given  him,  which  would  be  a  greater  outrage 
on  good  logic  than  to  pronounce  he  had  no  remedy.     *    *    *    The  degree 


486  THE  LAW  OF  DAMAGES. 


Injury  by  Infants  and  Non  Compotes. 


far  as  their  responsibility  is  concerned,  they  are  held  to  the 
same  degree  of  care  and  diligence  as  persons  of  sound  mind 
and  of  full  age.     This  is  necessary  because  otherwise  there 


of  accountability  varies  with  the  age  and  capacity  of  individuals,  until  you 
get  to  a  point  where  he  or  she  is  utterly  disqualified  from  protecting  him  or 
herself.'    The  judgment  for  the  plaintiff  was  affirmed. 

In  LjTich  V.  Nurchn,  1  Adolphus  &  Ellis  (N.  S.),  29,  the  child  was  a  direct 
trespasser,  yet  recovered  for  negligence  of  the  owner  of  the  cart,  left  stand- 
ing with  the  horse  unhitched  in  the  street.  The  cliild  got  into  the  cart,  and 
the  horse  ran  away  and  injured  the  child.  See,  also,  Birge  v.  Gardner,  19 
Conn.,  507;  Daley  v.  Railroad  Co.,  26  Id.,  59;  Railroad  Co.  v.  Stout,  17 
WaU.,  657;  Chicago  &  C.  R.  R.  Co.  v.  Gregory,  58  111.,  226.  In  this  case 
the  court  says :  '  We  cannot  impute  negligence  to  a  child  of  such  tender 
years  (not  quite  five  years  old),  and  especially  to  one  of  less  than  ordinary 
capacity.'  See,  further.  City  v.  Ruby.  8  Minn.,  169;  Cahill  v.  Eastman,  18 
Minn.,  324;  Bronson  v.  Southberry,  57  Conn.,  199;  Boland  v.  Miss.  R.  R., 
36  Mo.,  490;  Robinson  v.  Cone,  22  Vt.,  213;  Belfontaine  &  I.  R.  R.  v.  Snyder, 
18  Ohio  St.,  399;  North  Pa.  R.  R.  Co.  v.  Mahony,  31  Penn.  St.,  187.  See 
Ranch  v.  Lloyd,  31  Penn.  St.,  358.  These  cases  overrule  the  case  of  Hart- 
field  V.  Roper,  supra,  and  other  cases,  first  referred  to,  and  seem  to  hold 
with  better  reason,  that  the  child  may  i-ecover  against  one  who  has  negli- 
gently injured  it,  and  the  negligence  of  parents  or  guardians  is  not  imputa- 
ble to  it  where  the  action  is  by  the  child;  otherwise,  where  the  parent  sues 
for  loss  of  service. 

Now,  under  the  above  decisions  we  believe  the  modern  doctrine  is,  that  the 
child  is  required  to  exercise  what  capacity  it  has  to  avoid  danger,  which 
would  be  that  capacity  ordinarily  exercised  by  children  of  its  age.  But  if  the 
child  possessed  less  capacity,  it  may  be  shown.  Chicago  and  C.  R.  R.  v. 
Gregory,  supra.  But  the  defendant,  unless  he  had  knowledge  of  the  mental 
defect,  would  have  a  right  to  treat  it  as  possessing  ordinary  apparent  capac- 
ity. Schierhold  v.  N.  B.  &  M.  R.  R.,  40  Cal.,  447;  111.  Cen.  R.  R.  Co.  v. 
Buckner,  28  111.  299.  So  a  bUnd  or  deaf  person  must  use  ordinary  care  to 
protect  himself  as  against  his  own  defects.  See,  last  case  cited  above.  The 
parents  may  and  would  be  liable  for  injuries  done  by  the  child;  as,  if  they 
permitted  a  child  to  enter  a  room  with  a  hammer  where  there  was  a  mirror 
within  reach  likely  to  attract  attention. 

All  liabiUty  for  torts  rests  upon  the  basis  that  the  party  charged  has  done 
a  wrongful  or  culpable  act;  either  intentional  wrong,  or  the  failure  of  him- 
self or  agent  to  use  ordinary  care.  Ordinary  care  is  measured  by  the  intel- 
lect the  actor  possesses  or  is  presumed  to  possess.  The  person  who  is  non 
comjws  mentis  should  not  be  made  civilly  responsible  for  failm-e  to  exercise  a 
power  he  does  not  possess.  The  great  principle  on  which  all  law  rests  is, 
that  it  commands  that  which  is  right  and  forbids  that  which  is  wrong. 
This  presupposes  a  knowledge  of  right  and  wi'ong.    Want  pf  knowledge  and 


TORTS— mJURIES  TO  PERSON.  4ST 


Injury  by  Infants  and  Non  Compotes. 


would  be  no  redress  for  injuries  committed  by  such  persons 
and  the  anomaly  might  be  witnessed  of  a  child  having  abund- 
ant wealth  depriving  another  of  his  property  without  compen- 
sation.""     But  inevitable    accident   or  casualties  occurring 

of  the  power  to  acquire  it  is  a  defense  for  the  failure  to  apply  it.  The  law 
does  not  require  impossible  thinprs.  Insanity  is  an  act  of  God.  Why  should 
the  estate  of  the  madman  be  chargeable  for  the  acts  he  cannot  prevent?  God 
caused  liis  insanity  as  much  as  the  tempest  or  earthquake.  The  act  of  God 
is  always  an  excuse.  The  principle  that  he  who  injures  another  must  respond 
in  damages  for  the  injuiy,  is  believed  not  to  be  sound  where  the  actor  is  not 
in  fault,  as  shown  by  modem  authorities.  The  chHd  is  only  responsible  for 
the  exercise  of  the  judgment  it  has.  Hence,  tho-e  who  have  no  reason  to 
exercise,  have  no  liability."     1  South.  L.  Rev.  {N.  S.),  346. 

See,  also,  on  the  subject  of  contributory  negUgence  of  a  child,  ante,  §  192, 
et  seq. 

5'  Shear.  &  Red.  on  Neg.,  §  557.  See,  also.  Bush  v.  Pettibone,  4  Coms.  (N. 
Y.),  300.  "Such  persons  are  held  civilly  for  trespasses  and  torts,  as  the 
actionable  qualities  of  such  acts,  do  not  depend  upon  intention."  Dillon,  J., 
in  Behrens  v.  McKinzie,  23  la.,  343;  Morse  v.  Crawford,  supra. 

"Torts  under  the  French  law,"  is  the  subject  of  an  interesting  article  in 
Vol.  8,  No.  3,  (April  1874, )  of  the  American  Law  Review,  in  which  the 
author  gives  us  a  statement  of  the  French  Law  of  torts  as  he  finds  it  in  a 
recent  treatise,  entitled: 

Traits  General  de  la  Responsabilite  ou  de  V Action  en  Dommages-intirHs  en 

dehores  des  Contracts.    Par  M.  A.  Sourdat,  Docteur  en  Droit,  Conseil- 

ler  k  la  Cour  d'Appel  d' Amiens  (1872). 

He  observes:     "  This  is  a  treatise  upon  the  subject  of  torts  as  it  exists 

in  the  French  law.     By  the  Enghsh  common  law  procedure  act  (15  and  16 

Vic,  Chap.  70,)  a  tort  is  described  as  '  a  wrong  independent  of  contract.' 

This  book,  as  its  title  imports,  treats  of  wrongs  independent  of  contract.  It 

may  not  be  uninteresting  to  see  how  this  very  important  subject  is  dealt  with 

in  another  system  of  jurisprudence. 

The  principle  of  civil  responsibiUty  for  wrongs  is  expressed,  in  a  general 
manner,  in  Art.  1382  of  the  Code  Napoleon:  'Every  act  whatever  of  a 
man  which  causes  damage  to  another  obliges  him  by  whose  fault  it  has  hap- 
pened to  repair  it.'  This  book  is  a  development  of  that  article.  The  author 
says  of  it,  there  is  no  principle  of  law  which  is  more  prolific  of  consequences, 
of  more  frequent  occurrence  in  practice,  more  simple  in  appearance,  and 
more  difficult  of  application  than  this. 

By  the  English  law,  an  insane  person,  and  probably  a  minor  below  the  age 
of  discernment  of  right  and  wrong,  though  they  are  not  criminally  liable, 
are  at  least  under  many  circumstances  civilly  responsible  for  the  damage  they 
may  do ,  as  a  person  of  sound  mmd  or  an  adult  would  be  under  the  same 


488  THE  LAW  OF  DAMAGES. 


Injury  by  Infants  and  Non  Compotes. 


without  any  fault,  have  generally  been  held  an  excuse,  for  an 
injury  resulting  in  loss,  whether  the  party  through  which  it 

circumstances.  (Barnard  v.  Haorgis,  32  Law,  J.  C.  P.,  189;  Bristow  v.  East- 
man, 1  Esp.,  172.)  But  by  the  French  law,  as  the  principle  of  responsibility, 
civil  as  well  as  criminal,  implies  a  fault  imputable  to  the  doer  of  the  harm- 
ful act,  the  insane  and  minors  under  the  age  of  discernment  are  freed  from 
aU  responsibility,  civil  as  well  as  criminal.  In  this  the  author  says  there  is 
no  injustice.  Although  the  one  who  causes  the  damage  is  rich,  he  is  not 
obliged  to  indemnify  the  sufferer  who  may  be  poor;  for  it  is  a  case  of  acci- 
dent, as  much  as  if  a  tile  should  fall  fronj  a  roof  and  kill  a  person  beneath. 
Upon  the  subject  of  infancy  a  distinction  is  made,  which  has  no  place  in 
the  English  law.  If  a  minor  is  below  the  age  of  sixteen,  but  capable  of  act- 
ing with  discernment,  yet  as  the  liability  in  every  case  depends  not  only  upon 
the  amount  of  damage  done,  but  also  upon  the  blame  attachable  to  the  per- 
son doing  the  damage,  and  as  an  act  done  by  an  infant  is  less  blamable  than 
one  done  by  an  adult,  the  fact  of  his  nonage  is  allowed  its  influence  in  deter- 
mining the  amount  of  the  judgment.  The  fact  that  one  is  under  guardian- 
ship as  a  spendthrift  does  not  necessarily  discharge  him  from  liability. 
Although  such  a  spendthrift  has  not  the  enturety  of  his  faculties,  the  faculty 
which  liis  status  shows  to  be  wanting  is  the  faculty  of  caring  for  his  pecuni- 
aiy  interests.  His  moral  sense,  his  conscience,  and  his  %vill,  are  not  necessa- 
rily impaired.  His  accountability  or  non-accountability  is  therefore  a  ques- 
tion of  fact.  Drunkenness,  voluntarily  produced,  is,  however,  no  excuse  for 
a  wrong. 

A  third  person,  by  paying  for  the  damage  done,  can  discharge  the  liability 
of  the  wrong-doer,  even  against  the  will  of  the  party  wronged.  The  legal 
restraint  under  which  the  press  labors,  and  the  temptation  which  exists  to 
break  through  that  restraint,  is  shown  in  this  connection.  In  matters  of  libel 
by  the  press  it  is  a  violation  of  law  to  publicly  advertise  for  subscriptions  to 
pay  the  costs,  fines,  and  damages  which  have  been  incurred  by  a  libelous 
pubhcation;  but  a  subscription  made  for  such  a  purpose  is  not  in  itself  illegal. 
There  is  much  to  be  said  against  and  for  a  method  of  trial  which  is  allowed 
in  criminal  cases.  When  one  is  injured  by  an  act  wliich  is  criminally  pun- 
ishable, he  can  unite  his  private  cause  of  action  with  the  proceedings  of  the 
pubhc  prosecution.  Thus  the  whole  matter,  with  its  criminal  and  its  civil 
side,  may  be  determined  at  once,  and  punishment  for  the  crime  and  repara- 
tion for  the  damage  caused  may  be  awarded  in  the  same  proceedings. 

Wliile  the  rules  of  liability  appear  to  be  in  general  the  same,  or,  when 
different,  even  more  strict  in  favor  of  the  defendant  than  the  rules  of  the 
English  law,  stUl  a  plaintiff  is  allowed  to  ground  his  action  upon  an  injury 
which  is  never  directly,  and  scarcely  ever  incidentally,  protected  by  our  law. 
To  maintain  an  action  the  interest  must  be  direct,  and  the  right  must  be  an 
actual  right.  But  the  interest  need  not  be  a  material  or  a  pecuniary  one;  a 
moral  interest  will  suffice.     Damages  can  be  recovered  by  a  son  for  the  death 


TORTS— IXJUEIES  TO  PEESON.  489 

Injury  by  Infants  and  Xon  Compotes. 

occurred  was  an  adult  and  of  sound  mind,  or  an  infant  or  a 
person  of  unsound  mind/^ 

of  his  father,  and  by  a  woman  for  the  death  of  her  husband  or  child.  Some- 
times a  material  interest  may  be  joined  with  a  moral  one;  the  father  being 
the  support  of  the  family,  or  the  son  the  support  of  his  mother.  But  if  the 
death  was  that  of  an  infant,  or  of  an  old  man  whose  feebleness  and  infirmity 
rendered  him  a  burden  instead  of  a  support,  an  action  could  still  be  main- 
tained. The  author  says:  '  If  such  action  could  not  be  maintained,  follow 
out  the  reasoning  to  its  consequences,  it  goes  to  the  length  of  asserting 
that,  instead  of  domg  the  son  or  the  mother  an  injury  by  the  death,  the 
wrong-doer  has  rendered  them  a  service.  Such  reasoning  would  be  to  mis- 
take the  morale  of  the  law;  to  put  money  against  the  aflPections  of  the  heart. 
He  who  brings  an  action  under  such  circumstances,  according  to  the  beauti- 
ful expression  of  the  Roman  law,  causam  agit  doloris.  It  is  sometimes  the 
duty  of  a  son  or  of  a  widow  in  such  a  case  to  join  a  private  action  with  the 
public  prosecution,  either  for  the  purpose  of  giving  aid  to  the  pubUc  prose- 
cutor, or  to  stimulate  his  inactivity  and  want  of  zeal.  The  widow,  the  son, 
the  mother,  has  a  right  to  compensation  for  the  wrong  suffered  in  the  social 
relation.  It  is  said  that  money  cannot  pay  for  grief;  but  the  amount  recov- 
ered is  not  to  be  regarded  so  much  as  a  making  whole  of  the  party  injured, 
as  it  is  a  filling  out  of  the  satisfaction  demanded  from  the  culpable  person. 
The  appUcation  of  the  punishment  suflBces  for  the  vindication  of  the  public; 
but  one  hurt  in  his  feehngs,  in  bis  reputation,  has  a  right  to  a  private  com- 
pensation. That  compensation  is  given  in  money,  for  want  of  power  to 
give  a  better  one.'  '' 

5^  Parrott  v.  Wells.  15  WaU.,  524;  Dixon  v.  BeU,  5  M.  &  S.,  198;  Brown 
V.  CoUins,  53  N.  H.,  442;  Bissel  v.  Baker,  19  Ark.,  303.  See,  also,  author- 
ities above  cited.  And  in  no  case  can  such  persons  be  held  for  exemplary 
damages.     See  ante,  §  75. 


490  THE  LAW  OF  DAMAGES. 

The  Common  Law  Doctrine. 


OHAPTEE  XXI. 


DAMAGES  FOR  INJURIES  RESULTING  IN  DEATH. 

Section  626.  The  Common  Law  Doctrine. 

627.  English  Legislation  on  the  Subject. 

628.  The  New  York  Statute. 

629.  Statutes  of  Various  States-Similarity  of. 

630.  Damages  Actual  and  Pecuniary— Not  Exemplary— Notlung 

Allowed  for  Physical  or  Mental  Suffering. 

631.  Damages  Frequently  Limited  by  Statutes— Construction  of, 

when  not. 

632.  "What  it  is  Competent  to  Show— Expectation  of  Life. 
634.    Instances. 

636.  Legal  Eight  to  Benefit  from  the  Life  not  Essential— Pre- 

sumptions. 

637.  Value  of  an  Annuity— Carlisle  Tables. 

638.  Statutes  Have  no  Extra-Territorial  Operation. 

639.  "Widow— Children— "Wealth  of  the  Defendant. 

640.  Death  of  a  Child— Limitation. 

641.  In  Pari  Delicto. 

642.  Damages  in  Other  and  Special  Cases  Resulting  in  Death. 

643.  Distinction  Between  Injuries  to  the  Person  of  Deceased 

and  Injuries  to  Others  from  the  Death— Death  Instanta- 
neous or  Otherwise. 
645.    The  Statutes  of  Iowa— Exemplary  Damages  under. 

647.  California  Statute— Exemplary  Damages  under. 

648.  The  Effect  of  a  Policy  on  the  Life  of  the  Deceased. 

649.  "Who  Entitled  to  Kecover. 

650.  Conclusions. 

§  626.    The  Common  Law  Doctrine.— The  life  of  a 
human  being  must  ordinarily  be  considered  a  precious  boon 


INJUEIES  EESULTING  IK  DEATH.  491 

The  Common  Law  Doctrine. 

to  himself  and  others;  but,  notwithstanding  this,  at  common 
law,  for  certain  technical  reasons,  no  action  could  he  main- 
tained for  an  injury  resulting  in  the  death  of  a  person,  or  for 
losses  sustained  bj  the  death.  Lord  Ellenborough  once 
remarked  that,  "  the  death  of  a  human  being  cannot  be  com- 
plained of  as  an  injury;  "  '  which,  to  the  common  understand- 
ing, appears  strange  and  paradoxical.  The  absurdity  of  this 
doctrine  was  well  set  forth  by  Mr.  Justice  Cole,  in  a  recent 
case,  when  he  said:  "  At  common  law,  if  one  person  assaulted 
and  beat  another,  the  person  assaulted  and  beaten  might  have 
his  action  and  recover  damages  therefor.  But  if  the  beating 
was  so  severe  as  to  j^roduce  death,  then  the  wrongdoer  was 
exempt  from  liability  to  damages  in  a  civil  action."  *  But  in 
England  and  most  of  the  states,  it  is  provided  by  statute,  that 
an  action  may  be  maintained  by  the  personal  representatives 
of  the  deceased,  for  the  benefit  of  the  widow  and  next  of  kin, 
or  for  the  benefit  of  the  estate  of  the  deceased,  for  damages 

'  Lord  Ellenborough  in  Baker  v.  Bolton,  1  Camp..  493.  See,  also,  Carry 
V.  Berkshire,  etc.,  R.  Co.,  1  Cush.,  475;  Hyatt  v.  Adams,  16  Mich.,  180; 
Edonv.  Lexington,  etc.,  R.  Co.,  14  B.  Mon.  (Ky.),  204  (1853);  1  Hill,  on 
Torts,  83. 

'^  Shearman  V.  The  Western  Stage  Co.,  24  la.,  543.  See,  also.  Ford  v. 
Monroe,  20  Wend.,  210;  Boston,  etc.,  v.  Dana,  1  Gray  (Mass.),  83;  Drew  v. 
The  Sixth  Av.  R.  Co.,  26  N.  Y.,  49;  Donaldson  v.  Mississippi,  etc.,  R.  Co., 
18  la.,  280.  The  case  of  Baker  v.  Bolton,  supra  (1808),  and  the  opinion  of 
Lord  Ellenborough  therein,  has  recently  been  severely  criticised  by  Judge 
Dillon,  of  the  United  States  Circuit  Court,  as  unsustained  by  reason,  and 
incapable  of  vindication.  He  maintains  that  the  doctrine  it  asserts  is  not 
"  deeply  rooted  in  the  common  law,"  and,  ''  that  it  ought  not  to  be  followed 
in  a  state  where  the  subject  is  entirely  open  for  settlement."  He  further 
remarks  that  ' "  it  would  be  diiFerent  if  the  rule  had  been  settled  in  England 
by  a  long  course  of  decisions  made  prior  to  the  settlement  of  this  country, 
as  in  that  event  the  courts  here  would  find  it  less  difficult  to  receive  it." 
SulUvan  v.  Union  Pacific  R.  Co.,  U.  S.  Circuit  Ct.,  Dist.  of  Neb.,  Oct.  Term, 
1874;  1  Central  Law  Journal,  595.  See,  also,  in  support  of  those  conclusions, 
Jones  V.  Perry,  2  Esp.,  482;  Cross  v.  Guthray,  2  Root  (Conn.),  90;  also,  dis- 
cussions of  the  question,  in  1  Central  Law  Journal,  590, 614,  622;  2  Id.,  12,  47, 
117,  165,  622,  723. 


492  THE  LAW  OF  DAMAGES. 


English  Legislation  on  the  Suhject. 


resulting   from    the   death   caused   by  the   wrongful    act   of 
another. 
§  627.    English   Legislation  on  the   Subject.— The 

earliest  English  legislation  on  the  subject  was  in  1846,  when 
by  a  statute  known  as  "  Lord  Campbell's  Act,"  the  personal 
representatives  of  every  person  killed  by  the  "wrongful  act, 
neglect,  or  default "  of  another,  and  leaving  a  wife,  husband, 
parent,  or  child,  a  right  of  action  was  given  to  recover  for  the 
damages  sustained  thereby.  As  this  statute  is  substantially 
the  same  as  those  of  many  states  of  the  Union  that  have  since 
been  adopted,  we  will  be  justified  in  setting  out  a  copy  of  it. 
It  is  as  follows: 

"  Sec.  1,  *  *  *  Whensoever  the  death  of  a  person  shall 
be  caused  by  wrongful  act,  neglect  or  default,  and  the  act, 
neglect  or  default  is  such  as  would,  if  death  had  not  ensued, 
have  entitled  the  party  injured  to  maintain  an  action  and 
recover  damages  in  respect  thereof,  then  in  every  such  case, 
the  person  who  would  have  been  liable  if  death  had  not  ensued, 
shall  be  liable  to  an  action  for  damages  notwithstanding  the 
death  shall  have  been  caused  under  such  circumstances  as 
amount  in  law  to  a  felony. 

"  Sec.  2.  Every  such  action  shall  be  for  the  benefit  of  the 
wife,  husband,  parent  and  child,  of  the  person  whose  death 
shall  be  so  caused,  and  shall  be  brought  by  and  in  the  name 
of  the  executor  or  administrator  of  the  person  deceased;  and 
in  every  such  action  the  jury  may  give  such  damages  as  they 
may  think  proportioned  to  the  injury,  resulting  from  such 
death,  to  the  parties  respectively  for  whose  benefit  such  action 
shall  be  brought;  and  the  amount  so  recovered,  after  deduct- 
ing the  costs  not  recovered  from  tlie  defendant,  shall  be  divided 
amongst  the  before-mentioned  parties,  in  such  shares  as  the 
jury  by  their  verdict  sliall  find  and  direct." ' 

3  9  and  10  Vict.,  Ch.  93,  §§  1,  2. 


INJUEIES  RESULTING  IN  DEATH.  493 

statutes  of  Various  States.   , 

§  628.  The  New  York  Statute.— The  New  York  statute 
provides  as  follows:  "Whenever  the  death  of  a  person  shall 
be  caused  by  wrongful  act,  neglect,  or  default,  and  the  act, 
neglect,  or  default,  is  such  as  would,  if  death  had  not  ensued, 
have  entitled  the  party  injured  to  maintain  an  action  and 
recover  damages  in  respect  thereof,  then  and  in  every  such 
case,  the  person  who,  or  the  corporation  which,  would  have 
been  liable  if  death  had  not  ensued,  shall  be  liable  to  an  action 
for  damages,  notwithstanding  the  death  of  the  person  injured, 
and  although  the  death  shall  have  been  caused  under  such 
circumstances  as  amount  in  law  to  felony."  "Every  such 
action  shall  be  brought  by  and  in  the  names  of  the  personal 
representativ^es  of  the  deceased  person,  and  the  amount  recov- 
ered in  every  such  action  shall  be  for  the  exclusive  benefit  of 
the  widow  and  next  of  kin  of  such  deceased  person,  and  shall 
be  distributed  to  such  widow  and  next  of  kin,  in  the  propor- 
tion provided  by  law  in  relation  to  the  distribution  of  personal 
property  left  by  persons  dying  intestate;  and  in  every  such, 
action  the  jury  may  give  such  damages  as  they  shall  deem  fair 
and  just  compensation,  not  exceeding  five  thousand  dollars, 
with  reference  to  the  pecuniary  injuries  resulting  from  such 
death,  to  the  wife  and  next  of  kin  of  such  deceased  person; 
provided  that  every  such  action  shall  be  commenced  within  two 
years  after  the  death  of  such  j)erson."* 

§629.  Statutes  of  Various  States.— The  statutes  of 
many  of  the  states  of  the  Union,*  do  not  differ  materially 

4  N.  Y.  Stat.  1847.  Ch.  450,  §§  1.  2,  as  amended  by  Stat.  1849,  Ch.  256,  § 
14;  Edmond's  Statutes  at  Large,  526. 

5  Vermont. — "Whenever  the  death  of  a  person  shall  hereafter  be  caused 
by  the  wrongful  act,  neglect  or  default  of  any  person,  either  natural  or  arti- 
ficial, and  the  act,  neglect  or  default  is  such  as  would,  if  death  had  not  ensued, 
have  entitled  the  party  injured  to  mairtain  an  action  and  recover  damages 
in  respect  thereof,  then,  and  in  every  such  case,  the  person  or  corporation 
who  would  have  been  liable  to  such  action  if  death  had  not  ensued,  shall  be 
liable  to  an  action  for  damages,  notwithstanding  the  death  of  the  person 
injured,  and  although  the  death  shall  have  been  caused  under  such  circum- 


494  THE  LAW  OF  DAMAGES. 


statutes  of  Various  States. 


from  the  New  York  statute  on  tliis  subject,  except  as  to  the 
amount  which  may  be  recovered,  and  the  parties  who  may 

stances  as  shall  amount  in  law  to  a  felony."  (Gen.  Stat.  Vt..  1863,  Ch.  52. 
§  15.)  "Every  such  action  shall  be  brought  in  the  name  of  the  personal 
representatives  of  such  deceased  person ;  and  the  amount  recovered  in  such 
action  shall  be  for  the  exclusive  benefit  of  the  widow  and  next  of  kin  of  such 
deceased  person,  who  shall  receive  the  same  proportions  as  provided  by  law 
for  the  distribution  of  the  personal  estate  of  persons  dying  intestate."  Id., 
§16. 

New  Jersey.— "  Whenever  the  death  of  a  person  shall  be  caused  by 
wrongfid  act,  neglect  or  default  and  the  act,  neglect  or  default,  is  such  as 
would,  if  death  had  not  ensued,  entitled  the  party  injured  to  maintain  an 
action  and  recover  damages  in  respect  thereof,  then,  in  every  such  case, 
the  pei-son  who,  or  the  corporation  which  would  have  been  liable  if  death 
had  not  ensued,  shall  be  liable  to  an  action  for  damages,  notwithstanding 
the  death  of  the  person  injured,  and  although  the  death  shall  have  been 
caused  under  such  circumstances  as  amount  in  law  to  a  felony."  "Every 
such  action  shall  be  brought  by  and  in  the  names  of  the  personal  repre- 
sentatives of  such  deceased  person;  and  the  amount  recovered  in  every 
such  action  shall  be  for  the  exclusive  benefit  of  the  widow  and  next  of 
kin  of  such  deceased  person,  and  shall  be  distributed  to  such  ^\^dow  and 
next  of  kin  in  the  proportions  provided  by  law  in  relation  to  the  distribu- 
tion of  personal  property  left  by  persons  dying  intestate;  and  in  every  such 
action  the  jury  may  give  such  damages  as  they  shall  deem  fair  and  just  with 
reference  to  the  pecuniary  injury  resulting  from  such  death  to  wife  and  next 
of  kin  of  such  deceased  person;  provided,  that  everj'  such  action  shall  be  com- 
menced within  twelve  calendar  months  after  the  death  of  such  deceased  per- 
son." (Nixon's  Dig.  [1868,]  p.  234,  §§  1.  2.) 

No)-th  Carolina.—-'  Whenever  the  death  of  a  person  shall  be  caused  by 
the  negligence  or  default  of  any  railroad  or  steamboat  company,  or  any 
steamboat  or  stage  coach  proprietor,  in  this  state,  and  the  neglect  or  default 
is  such  as  would  have  entitled  the  party  injured  to  maintain  an  action  and 
recover  damages  in  respect  thereof,  if  death  had  not  ensued,  then,  and  in 
everj'  such  case,  the  corporation  which  would  have  been  liable  if  death  had 
not  ensued,  shall  be  liable  to  an  action  for  damages  notwithstanding  the 
death  of  the  party  injured.  Whenever  the  death  of  a  person  shall  be  caused 
by  the  wi-ongful  act  of  another  person,  and  the  wrongful  act  is  such  as  would 
have  entitled  the  party  injured  to  maintain  an  action  and  recover  damages 
in  respect  thereof,  if  death  had  not  ensued,  then,  and  in  every  such  case,  the 
person  who  would  have  been  liable  if  death  had  not  ensued,  shall  be  liable 
to  an  action  for  damages  notwithstanding  the  death  of  the  person  injured, 
although  the  death  shall  have  been  caused  under  such  circumstances  as 
amount  in  law  to  felony.  Every  such  action  shall  be  brought  by  and  in  the 
name  of  the  personal  representatives  of  the  deceased,  and  the  amount  recov- 
ered shall  be  disposed  of  according  to  the  statutes  for  the  distribution  of  per- 


IKJUEIES  EESULTING  IN  DEATH.  495 

statutes  of  Various  States. 

recover,  or  for  whose  benefit  suit  may  be  brought.  The 
appended  note  contains  the  provisions  of  the  statutes  of  several 

sonal  property  in  case  of  intestacy.  And  in  every  such  action  the  jury  may 
give  such  damages  as  they  shall  deem  fair  and  just,  with  reference  to  the 
pecuniary  injury  resulting  from  such  death."  *  *  *  -'Tlie  amount 
recovered  in  every  such  action  shall  be  for  the  exclusive  and  sole  benefit  of 
the  widow  and  issue  of  the  deceased,  in  all  cases  where  they  are  surviving." 
(N.  C.  Rev.  Code,  1855,  p.  65,  Ch.  1,  §§  8,  9,  10  11.  Substantially  the  same 
provisions  are  contained  in  the  Rev.  of  1873.  See  Battle's  Rev.,  p.  414,  §§ 
121.  122, 123.) 

Ohio.  — ' '  Whenever  the  death  of  a  person  shall  be  caused  by  wrongful  act, 
neglect  or  default,  and  the  act,  neglect  or  default  is  such  as  would  ( if  death 
had  not  ensued)  have  entitled  the  party  injured  to  maintain  an  action  and 
recover  damages  in  respect  thereof;  then,  and  in  every  such  case,  the  per- 
son who,  or  the  corporation  which,  would  have  been  liable,  if  death  had  not 
ensued,  shall  be  liable  to  an  action  for  damages,  notwithstanding  the  death 
of  the  person  injured,  and  although  the  death  shall  have  been  caused  under 
such  circumstances  as  amount  in  law  to  murder  in  the  first  or  second  degree 
or  manslaughter."  "Every  such  action  shall  be  brought  by  and  in  the  name 
of  the  personal  representatives  of  such  deceased  person,  and  the  amount 
recovered  in  every  such  action  shall  be  for  the  exclusive  benefit  of  the  widow 
and  next  of  kin  of  such  deceased  person  dying  intestate;  and  in  every  such 
action  the  jury  may  give  such  damages  as  they  shall  deem  fair  and  just,  not 
exceeding  five  thousand  dollars,  with  reference  to  the  pecuniary  injury  result- 
ing from  such  death  to  the  wife  and  next  of  kin  of  such  deceased  person ; 
proNided  that  every  such  action  shall  be  commenced  within  two  years  after 
the  death  of  such  deceased  person."  (Ohio  Rev.  Stat.  [Swan  &  Cr.,]  1860,  p. 
1139.  Chap.  87,  §§  636,  637.) 

Illinois. — The  statute  of  Illinois  is  a  substantial  copy  of  the  Ohio  statutes. 
(Rev.  1874.  p.  582;  1  lU.  Rev.  St.,  1858,  p.  422,  §§  1,  2.) 

Michigan. — The  statute  of  Michigan  is  also  a  substantial  copy  of  the  Ohio 
statute,  except  the  limitation  of  damages  to  $5,000  dollars.  (Compiled  Laws 
[Dewey]  1872,  p.  1881.)  But  if  the  injury  is  by  a  railroad  the  damages  are 
limited.     Id.  pp.  771,  814.    Mich.  Rev.  St.  1857,  p.  1329,  Ch.  515,  §§  1,  2.) 

Wisconsin. — Sec.  12  of  the  Wisconsin  act  is  the  same  as  §  636  of  the  Ohio 
statute,  except  the  last  clause  in  relation  to  the  act  amounting  to  murder  or 
manslaughter.  Section  13  provides:  '' Every  such  action  shall  be  brought 
by  and  m  the  name  of  the  personal  representatives  of  such  deceased  person; 
and  the  amount  recovered  shall  belong  and  be  paid  over  to  the  husband  or 
widow  of  such  deceased  person  if  such  relative  survive  him  or  her,  but  if  no 
husband  or  widow  survive  the  deceased,  the  amount  recovered  shall  be  paid 
over  to  his  or  her  Hneal  descendants,  and  to  his  or  her  Lineal  ancestors  in 
default  of  such  descendants,  and  in  every  such  action  the  jury  may  give  such 
damages,  not  exceeding  five  thousand  dollars,  as  they  shall  deem  fair  and 


496  THE  LAW  OF  DAMxYGES. 

statutes  of  Various  States. 

states.  With  the  exception  of  the  statutes  of  California,  and 
perhaps  Iowa,  which  we  shall  hereafter  notice,  the  phraseology 

just  in  reference  to  the  pecuniary  injury  resulting:  from  such  death  to  the 
relatives  of  the  deceased  specified  in  this  section;  provided  every  such  action 
shall  be  commenced  within  two  years  after  the  death  of  such  deceased  per- 
son." (Rev.  Statutes  [Taylor]  p.  1574  [1871].  Wis.  Rev.  Stat.,  1858,  p. 
800,  Ch.  135,  §§  12, 1.3.) 

Calif ornia.  —"When  the  death  of  a  person  is  caused  by  the  wrongful  act 
or  neglect  of  another,  his  heirs  or  personal  representatives  may  maintain  an 
action  for  damages  against  the  person  causing  the  death;  or  when  the  death 
of  a  person  is  caused  by  an  injury  received  in  falKng  through  an  opening  or 
defective  place  in  a  sidewalk,  street,  alley,  square  or  wharf,  his  heirs  or 
personal  representatives  may  maintain  an  action  for  damages  against  the 
person  whose  duty  it  was  at  the  time  of  the  injury,  to  have  kept  in  repair 
such  sidewalk  or  other  place.  In  every  such  action  the  jury  may  give  such 
damages,  pecuniary  or  exemplary,  as  under  all  the  circumstances  of  the  case 
may  to  them  seem  just."    (Code  of  Civ.  Proc.  §  377,  [1872].) 

Indiana. — ''"When  the  death  of  one  is  caused  by  the  wrongful  act  or  omis- 
sion of  another,  the  personal  representatives  of  the  former  may  maintain  an 
action  therefor  against,  the  latter,  if  the  former  might  have  maintained  an 
action,  had  he  lived,  against  the  latter  for  an  injury  for  the  same  act  or  omis- 
sion. The  action  must  be  commenced  within  two  years.  The  damages 
cannot  exceed  five  thousand  dollars,  and  must  inure  to  the  exclusive  benefit 
of  the  widow  and  children,  if  any,  or  tlie  next  of  kin,  to  be  distributed  in  the 
same  manner  as  personal  property  of  the  deceased."  (2  Ind.  Rev.  Stat. 
[Gavm  &  Hord],  1862,  3:30,  §  784.) 

Oregon. — "When  the  death  of  a  person  is  caused  by  the  wrongful  act  or 
omission  of  another,  the  personal  representatives  of  the  former  may  main- 
tain an  action  at  law  therefor  against  the  latter  if  the  former  might  have 
maintained  an  action,  had  he  lived,  against  the  latter  for  an  injury  done  by 
the  same  act  or  omission.  Such  action  shall  be  commenced  within  two 
years  after  the  death,  and  the  damages  therein  shall  not  exceed  five  thou- 
sand dollars,  and  the  amount  recovered,  if  any,  shall  be  administered  as 
other  personal  property  of  the  deceased  person."  (Oregon  Code,  1862,  p.  97, 
§  367.    Gen.  Laws,  1872,  p.  187.) 

Missouri. — "Whenever  the  death  of  a  person  shall  be  caused  by  a  wrong- 
ful act,  neglect  or  default  of  another,  and  the  act,  neglect  or  default  is  such 
as  would,  if  death  had  not  ensued,  have  entitled  the  party  injured  to  main- 
tain an  action  and  recover  damages  in  respect  thereof,  then,  and  in  eveiy 
such  case,  the  person  who,  or  the  corporation  which,  would  have  been  liable 
if  death  had  not  ensued,  shall  be  liable  to  an  action  for  damages  notwith- 
standing the  death  of  the  person  injured."  (Gen.  Stat.  Missouri,  §  2,  Chap. 
147,  p.  601.    Wag.  Stat.,  p.  520.) 

"  All  damages  accruing  under  the  last  preceding  section  shall  be  sued  for 


INJURIES  RESULTING  IN  DEATH.  497 


statutes  of  Various  States. 


of  the  various  statutes  is  very  similar;  and  thej  are  generally 
a  substantial  copy  of  the  English  model,  known  as  "  Lord 
Campbell's  Act." 

and  recovered:  First,  by  the  husband  or  wife  of  the  deceased;  or,  second,  if 
there  be  no  husband  or  wife,  or  he  or  she  fails  to  sue  within  six  months  after 
such  death,  then  by  the  minor  child  or  children  of  the  deceased;  or,  third,  if 
such  deceased  be  a  minor  and  unmarried,  then,  by  the  father  and  mother, 
who  may  join  in  the  suit,  and  each  shall  have  an  equal  interest  in  the  judg- 
ment, or  if  either  of  them  be  dead,  then  by  the  survivor."  *  *  *  >'And 
in  every  such  action  the  jury  may  give  such  damages  as  they  may  deem  fair 
and  just,  not  exceeding  five  thousand  dollars,  with  reference  to  the  necessary 
injuiy  resulting  from  such  death  to  the  surviving  parties  who  may  be  entitled 
to  sue,  and  also  having  regard  to  the  mitigating  or  aggravating  ch-cum- 
stances  attending  such  wrongful  act,  neglect  or  default."  (1  Wag.  Stat.  p. 
519.) 

Minnesota.—"  When  death  is  caused  by  the  wrongful  act  or  omission  of 
any  party,  the  personal  representatives  of  the  deceased  may  maintain  an 
action,  if  he  might  have  maintained  an  action  had  he  lived,  for  an  injury 
caused  by  the  same  act  or  omission;  but  the  action  shall  be  commenced 
within  two  years  after  the  act  or  omission  by  which  the  death  was  caused; 
the  damage  thereon  cannot  exceed  five  thousand  dollars,  and  the  amount 
recovered  is  to  be  for  the  exclusive  benefit  of  the  widow  and  next  of  kin,  to 
be  distributed  to  them  in  the  same  proportions  as  the  personal  property  of 
the  deceased  person."  (Rev.  Stat.  Minnesota,  1866,  p.  546,  Ch.  77,  §  2.  Biss. 
Stat,  at  Large,  [1873,]  p.  913,  §  25.  Butler  v.  Steamboat  Milwaukee,  8 
Minn.,  97.) 

Kansas.— ''When  the  death  of  one  is  caused  by  the  wrongful  act  or  omis- 
sion of  another,  the  personal  representatives  of  the  former  may  maintain  an 
action  therefor  against  the  latter,  if  the  former  might  have  maintained  an 
action  had  he  lived,  against  the  latter,  for  an  injury  for  the  same  act  or 
omission.  The  action  must  be  commenced  within  two  years.  The  damages 
cannot  exceed  ten  thousand  dollars,  and  must  inure  to  the  exclusive  benefit 
of  the  widow  and  children,  if  any,  or  next  of  kin,  to  be  distributed  in  the 
same  manner  as  personal  property  of  the  deceased."  (Kansas  Gen.  Stat., 
1868,  p.  709,  Ch.  80,  §  422.) 

Alabatna.— '-When  the  death  of  a  person  is  caused  by  the  wTongful  act 
or  omission  of  another,  the  personal  representatives  of  the  former  may  main- 
tain an  action  against  the  latter  at  any  time  within  one  year  thereafter,  if 
the  former  could  have  maintained  an  action  had  he  lived,  against  the  latter 
for  an  injury  for  the  same  act  or  omission,  had  it  failed  to  produce  death. 
(Rev.  Code  Ala..  1767,  §  2297.)  The  damages  recovered  in  such  action  can- 
not exceed  three  years'  income  of  the  deceased,  and  in  no  case  exceed  three 
thousand  dollars.  The  amount  recovered  is  for  the  benefit  of  the  widow;  if 
there  be  none,  then  for  the  benefit  of  the  child  or  children;  if  there  be  none, 

32 


49S  THE  LAW  OF  DAMAGES. 

Damages  Actual  and  Pecuniary— Not  Exemplary— Nothing  Allowed,  etc. 

§  030-  Damage's  Actual  and  Pecuniary— Not  Exem- 
plary —  Nothing  Allowed  for  Physical  or  Mental 
Suffering. — In  construiu*^  these  statutes,  as  well  as  the  Eng- 

then  to  b3  distributed  as  other  personal  property  amongst  the  next  of  kin  of 
the  deceased."    (Ibid.,  §  2298.) 

Mississippi. — '"Wlienever  the  death  of  any  person  shall  be  caused  by  any 
such  \VTongful  or  negligent  act  or  omission  as  would,  if  death  had  not 
ensued,  have  entitled  the  party  injured  or  damaged  thereby  to  maintain  an 
action  and  recover  damages  in  respect  thereof,  and  such  deceased  person 
shall  have  left  a  widow  or  children,  or  both,  or  husband  or  father;  the  per- 
son, or  corporation,  or  both,  that  would  have  been  liable  if  death  had  not 
ensued,  and  the  personal  representatives  of  such  person,  shall  be  liable  for 
damages  notwithstanding  the  death;  and  the  action  may  be  brought  in  the 
name  of  the  widow  for  the  death  of  her  husband,  or  by  the  husband  for  the 
death  of  his  wife,  or  by  the  parent  for  the  death  of  a  child,  or  in  the  name 
of  a  child  for  the  death  of  an  only  parent;  the  damages  to  be  for  the  use  of 
such  widow,  husband,  or  child,  except  that  in  case  the  widow  should  have 
children,  the  damages  shall  be  distributed  as  personal  property  of  the  hus- 
band."   (Rev.  Code,  Miss.,  1851,  p.  486,  §48.) 

Iowa. — The  provisions  of  the  Code  of  Iowa  relating  to  this  subject  are  as 
foUows:  "  Every  corporation  operating  a  railway  shall  be  liable  for  all  dam- 
ages sustained  by  any  person,  including  employes  of  such  corporation,  in 
consequence  of  the  neglect  of  agents,  or  by  any  mismanagement  of  the  engi- 
neers or  other  employes  of  the  corporation,  and  in  consequence  of  the  willful 
wrongs,  whether  of  commission  or  omission  of  such  agents,  engineers  or 
other  employes,  when  such  wrongs  are  in  any  manner  connected  with  the 
use  and  operation  of  any  railway  on  or  about  which  they  shall  be  employed ; 
and  no  contract  which  restricts  such  HabUity  shall  be  legal  or  binding. ' ' 
(Iowa  Code,  187-3,  §  1307.)  "  All  causes  of  action  shall  survdve,  and  may  be 
brought,  notwithstanding  the  death  of  the  person  entitled  or  liable  to  the 
same."  (Id.,  §  2525.)  "  The  right  of  civil  remedy  is  not  merged  in  a  pub- 
lic offense,  but  may  in  all  cases  be  enforced  independently  of.  and  in  addition 
to  the  punishment  of  the  latter.  When  a  wrongful  act  produces  death,  the 
damages  shall  be  disposed  of  as  personal  property  belonging  to  the  estate 
of  the  deceased,  except  that  if  the  deceased  leaves  a  husband,  wife,  child  or 
parent,  it  shall  not  be  liable  for  the  payment  of  debts."     (Id.,  §  2526.) 

Arkansas. — "For  wrongs  done  to  the  person  or  property  of  another  an 
action  may  be  maintained  against  the  wrongdoers,  and  such  action  may  be 
brought  by  the  person  injured,  or  after  his  death  by  his  executor  or  admin- 
istrator, against  such  wrongdoer,  or  after  his  death  against  his  executor  or 
administrator  in  the  same  manner  and  with  like  effect  in  all  respects  as 
actions  founded  on  contracts."  (Statutes  of  Arkansas,  1858,  p.  120,  Ch.  4, 
§94.)     ^ 

Louisiana. — ' '  Every  act  whatever  of  a  man  that  causes„damage  to  another, 


INJUEIES  EESULTING  IN  DEATH.  499 


Damages  Actual  and  Pecuniary— Not  Exemplary— Nothing  Allowed,  etc. 

lisli  act,  the  courts  have  very  uniformly  held,  that  the  damao-es 
provided  for  and  recoverable  under  them,  are  only  such  as 
are  pecuniary  and  actual,  and  not  exemplary.     jSTor  can  any- 

obliges  him  by  whose  fault  it  happened  to  repair  it.  The  right  of  this  action 
shall  survive,  in  case  of  death,  in  favor  of  the  minor  children  and  widow  of 
the  deceased,  or  either  of  them,  and  in  default  of  these,  in  favor  of  the  sur- 
viving father  and  mother,  or  either  of  them,  for  the  space  of  one  year  from 
the  death."    (Rev.  Stat.  Louisiana,  1857,  p.  79,  §  18.) 

Maryland. — "  Whenever  the  death  of  a  person  shall  be  caused  by 
wrongful  act,  neglect  or  default,  and  the  act,  neglect  or  default  is  such  as 
would,  if  death  had  not  ensued,  have  entitled  the  party  injured  to  maintain 
an  action  and  recover  damages  in  respect  thereof,  the  person  who  would 
have  been  liable,  if  death  had  not  ensued,  shall  be  liable  to  an  action  for 
damages,  notwithstanding  the  death  shall  have  been  caused  under  such  cir- 
cumstances as  amount  in  law  to  felony. "  (Code  of  Maiyland,  1860,  Art. 
65,  §  1,  p.  449.)  "  Every  such  action  shall  be  for  the  wife,  husband,  parent, 
and  cliild  of  the  person  whose  death  shall  have  been  so  caused,  and  shall  be 
brought  by  and  in  the  name  of  the  state  of  Marj-land  for  the  use  of  the  per- 
son entitled  to  damages,  and  in  every  such  action  the  jury  may  give  such 
damages  as  they  may  think  proportioned  to  the  injury  resulting  from  such 
death  to  the  parties  respectively  for  whom  and  for  whose  benefit  such  action 
shall  be  brought,  and  the  amount  so  recovered,  after  deducting  the  costs  not 
recovered  from  the  defendant,  shall  be  divided  among  the  above  named 
parties  in  such  shares  as  the  juiy,  by  their  verdict,  shall  find  and  direct." 
(Id.,  §  2.) 

Pennsylvania. — "  Wlienever  death  shall  be  occasioned  by  unlawful  vio- 
lence or  negUgence,  and  no  suit  for  damages  be  brought  by  the  injured  party 
during  his  or  her  life,  the  widow  of  any  such  deceased,  or  if  there  be  no 
widow,  the  personal  representatives,  may  maintain  an  action  for,  and  recover 
damages  for  the  death  thus  occasioned."  (Purdon's  Penn.  Dig.,  1862,  p. 
754,  §  2.)  "The  persons  entitled  to  recover  damages  for  an  injury  causing 
death,  shall  be  the  husband,  widow,  children,  or  parents  of  the  deceased, 
and  no  other  relative;  and  the  sum  shall  go  to  them,  in  the  proportion  they 
would  take  his  or  her  personal  estate  in  case  of  intestacy^  and  that  without 
liability  to  creditors."     (Id.,  §  3.) 

Kentucky. — "  The  widow,  and  minor  child  or  children,  or  either,  or  any 
of  them,  of  a  person  killed  by  the  careless  or  wanton  use  of  firearms  or  other 
deadly  weapons,  not  in  self-defense,  may  have  an  action  against  the  person 
or  persons  who  committed  the  killing,  and  all  others  aiding  or  promoting 
the  killing,  or  any  one  or  more  of  them,  for  reparation  of  the  injury;  and  in 
such  action  the  jury  may  give  vindictive  damages."  (Gen.  Laws  Ky.,  1866, 
App.  p.  681.)    See,  also,  post,  §  642,  note  20. 

Maine. — "  Any  railroad  corporation  by  whose  negligence  or  carelessness,  or 
by  that  of  its  servants  or  agents  while  employed  in  its  business,  the  life  of 


500  THE  LAW  OF  DAMAGES. 

Damages  Actual  and  Pecuniary— Not  Exemplary— Nothing  Allowed,  etc. 

thing  be  allowed  as  damages  under  these  statutes,  with  the 
exceptions  we  have  indicated,  in  actions  by  or  for  the  benefit 
of  the  persons  entitled  thereto,  on  account  of  the  physical  or 

any  person,  in  the  exercise  of  due  care  and  dilij^ence,  is  lost,  forfeits  not  less 
than  five  hundred  dollars  nor  more  than  five  thousand  dollars,  to  be  recov- 
ered by  indictment  found  within  one  year,  wholly  to  the  use  of  his  widow,  if 
no  children;  and  to  the  children,  if  no  widow;  if  both,  to  her  ami  them 
equally;  if  neither,  to  his  heirs."  (Rev.  Stat.  Maine.  18")7,  p.  370,  Ch.  51, 
§  42.)  These  provisions  are  also  made  applicable  to  steamboats,  stage 
coaches  and  common  carriers.     (Id.,  p.  o76,  Ch.  52,  §  7.) 

New  Hampshire. — "If  the  life  of  any  person  not  in  their  employment 
shall  be  lost  by  reason  of  the  neglijrence  or  carelessness  of  their  servants  or 
agents,  in  this  state,  such  proprietors  shall  be  fined  not  exceeding  five  thou- 
sand dollars,  nor  less  than  five  hundred  dollars,  and  one-half  such  fine  shall 
go  to  the  widow,  and  the  other  half  to  the  children  of  the  deceased.  If 
there  is  no  child,  the  whole  shall  go  the  widow;  and  if  no  widow,  to  his 
heirs,  according  to  the  law  regulating  the  distribution  of  intestate  estates." 
(Gen.  Stat.  N.  H.,  1867,  p.  529,  Ch.  2G4,  §  14.) 

Connecticut. — "If  the  life  of  any  person,  being  a  passenger,  or  crossing 
upon  a  pubHc  highway,  in  the  exercise  of  reasonable  care,  shall  be  lost  by 
reason  of  the  negligence  or  carelessness  of  any  railroad  company  in  this 
state,  or  by  the  unfitnesss  or  negligence  or  carelessness  of  its  servants  or 
agents;  such  railroad  company  shall  be  liable  to  pay  damages,  not  exceeding 
five  thousand  dollars,  nor  less  than  one  thousand  dollars,  to  the  use  of  the 
executor  or  administrator,  in  an  action  on  the  case  upon  this  statute,  for  the 
benefit  of  the  husband,  or  widow  and  heirs  of  the  deceased  person;  one 
moiety  thereof  shall  go  to  the  husband  or  widow,  and  the  other  to  the  chil- 
dren of  the  deceased;  but  if  there  shall  be  no  children,  the  whole  shall  go  to 
the  husband  or  widow,and  if  there  is  no  husband  or  widow,  to  the  heirs 
according  to  the  law  regulating  the  disti-ibution  of  intestate  personal  estates." 
(Rev.  Stat.  Conn.,  1866,  p.  202,  Ch.  7,  §  544.)  The  statutes  of  Connecticut 
also  provide  that  an  action  for  the  death  of  a  person  shall  survive,  notwith- 
standing the  death  results  from  the  same  injury  which  is  the  ground  of  the 
action.  (Id.,  p.  22,  §  98.)  In  the  last  codification,  this  statute  has  under- 
gone some  alteration.  (Gen.  Stats.  Conn.,  1875,  p.  422,  §  9;  Ibid.,  p. 
488,  §  3.) 

RJwde  Island. — "  If  the  life  of  any  person,  being  a  passenger  in  any  stage 
coach  or  other  conveyance,  when  used  by  common  carriers,  or  the  life  of  any 
person,  whether  a  passenger  or  not,  in  the  care  of  proprietors  of,  or  common 
carriers  by  means  of,  railroad  or  steamboats ;  or  the  life  of  any  person  cross- 
ing upon  a  public  highway  with  reasonable  care,  shall  be  lost  by  reason  of 
the  neghgence  or  carelessness  of  such  common  carrier,  proprietor,  or  propri- 
etors, or  by  the  unfitness  or  neghgence  or  carelessness  of  their  servants  or 
agents  in  this  state,  such  common  carriers,  proprietor  or  proprietors,  shall 


INJURIES  RESULTING  IN  DEATH.  501 


Damages  Actual  and  Pecuniary— Not  Exemplaiy— Nothing  Allowed,  etc. 


mental  sufferings  of  the  deceased,  or  for  the  sorrow,  suffering 
or  grief  of  the  surviving  relatives,  wlio  may  be  entitled  to 
recover/     But  allowance  for  injuries  may  embrace  whatever 

be  liable  to  damages  for  the  injury  caused  by  the  loss  of  life  by  such  person, 
to  be  recovered  by  action  on  the  case,  for  the  benefit  of  the  husband  or  widow 
and  next  of  kin  of  the  deceased  person,  one  moiety  thereof  to  go  to  the  hus- 
band or  widow  and  the  other  to  go  to  the  children  of  the  deceased."  (Gen. 
Stat.  R.  I.,  1875,  p.  444,  Ch.  176,  §  16.) 

Texas. — "  If  the  life  of  any  person  is  lost  by  reason  of  the  neghgence  or 
carelessness  of  the  proprietor  or  proprietors,  owner,  charterer,  or  hirer  of  any 
railroad,  steamboat,  stage  coach,  or  other  vehicle  for  the  conveyance  of  goods 
or  passengers,  or  by  the  unfitness,  gross-negligence  or  carelessness  of  their 
servants  or  agents;  and  whensoever  the  death  of  a  person  may  be  caused  by 
wrongful  act,  neglect,  unskillfulness,  or  default,  and  the  act,  neglect,  unskill- 
fulness  or  default  is  such  as  would,  if  death  had  not  ensued,  have  entitled 
the  party  injured  to  maintain  an  action  for  such  injury,  then,  and  in  every 
such  case,  the  person  who  would  have  been  liable  if  death  had  not  ensued, 
shall  be  liable  to  an  action  for  damages,  notwithstanding  the  death  of  the 
person  injured,  and  although  the  death  shall  have  been  caused  under  such 
circumstances  as  amount  in  law  to  a  felony."  (Paschal's  Dig.,  1866,  p.  98, 
Art.  15,  §  1.)  "Every  such  action  shall  be  for  the  sole  and  exclusive  benefit 
of  the  surviving  husband,  wife,  child  or  children,  and  parents  of  the  person 
whose  death  shall  have  been  so  caused,  and  may  be  brought  by  such  entitled 
parties,  or  any  of  them,  and  if  said  parties  fail  for  tliree  calendar  months  to 
institute  suit,  then  it  shall  be  the  duty  of  the  executor  or  administrator  of 
the  deceased,  unless  specially  requested  by  all  of  said  parties  entitled,  not  to 
prosecute  the  same.  And  in  every  such  action  the  jury  may  give  such  dam- 
ages as  they  may  think  proportioned  to  the  injury  resulting  from  such  death; 
and  the  amount  so  recovered  shall  be  divided  among  the  person  or  persons 
entitled  under  this  act,  or  such  of  them  as  shall  then  be  ahve,  in  such  shares 
as  the  jury  shall  find  and  direct,  and  shall  not  be  liable  for  the  debts  of  the 
deceased."    (Id.,  §  1.) 

6  Duckworth  V.  Johnson,  4  H.  &  N.,  653;  s.  c,  7  Am.  Law  Reg.,  630; 
Franklin  v.  S.  E.  RaUw.  Co.,  3  H.  &  N.,  211;  Blake  v.  Mid.  R.  Co,,  18  Q.' 
B.,  93;  s.  c,  83  Eng.  Com.  Law  &  Eq.,  93;  10  Eng.  Law  &  Eq.,  437.  Gil- 
lard  V.  The  Lancashu-e  &  Y.  R.  Co.,  12  L.  T.,  356;  Penn.  R.  Co.  v.  McClos- 
key.  23  Pa.  St.,  526;  Whitford  v.  Pana.  R.  Co.,  23  N.  Y.,  465;  Canning  v. 
Wilhamstown,  1  Cush.,  451;  North  Penn.  R.  Co.  v.  Robinson,  44  Pa.  St. 
175;  The  State  of  Md.,  etc.,  v.  The  B.  &  0.  R.  Co.,  24  Md.,  84;  s.  c,  5  Am. 
Law  Reg.  (N.  S.),  397;  Cleveland,  etc.,  R.  Co.  v.  Rowan,  66  Pa  St.,  393; 
111.  Cent.  R.  Co.  v.  Baches,  55  111.,  379;  I.  Cent.  R.  Co.  v.  Weldon, 
52  III.,  290;  Penn.  R.  Co.  v.  Butler,  57  Pa.  St.,  335;  Chicago  &  N.  W. 
R.  Co.  V.  Swett,  45  111.,  197;  Chic.  &  Alton  R.  Co.  v.  Shannon,  43  111., 
338;  Penn.  R.  Co.  v.  Zebe,  33  Pa.  St.,  318;  Penn.  R.  Co.  v.  Kelley, 
31  Pa.  St.,  372;   Penn.  R.  Co.  v.  Vandever,  36  Pa.   St.,  298;    Mclntyre 


502  TEE  LAAV  OF  DAMAGES. 

Damages  Frequently  Limited  by  Statutes— Construction,  etc. 

may  be  the  source  of  pecuniary  injury  to  the  persons  for  whose 
benefit  the  statute  was  intended;  and  the  jury  have  great  lati- 
tude in  estimating  them.'  Thus,  it  has  been  held,  that  neither 
physical  suffering  and  pain,  nor  anguish  of  mind,  of  either 
the  deceased  or  those  for  whose  benefit  the  statute  permits  a 
recovery,  are  proper  elements  of  damages,  as  they  are  not 
pecuniary  injuries.' 

§  631.  Damages  Frequently  Limited  by  Statutes- 
Construction  of,  when  not —The  damages  are  frequently 
limited,  by  the  provisions  of  the  statutes,  to  the  pecuniary 
injury  sustained.  But  this  limitation  is  not  contained  in  the 
English  act,  and  is  not  found  in  all  of  the  statutes  of  the  states 
of  the  Union.  Nevertheless,  as  we  have  seen,  they  have  gen- 
erally been  construed  as  limiting  the  damages  to  the  pecuniary 
injuries  sustained.    But  these  may  include  the  pecuniary  value 

V.  The  N.  Y.  Cent.  R.  Co.,  47  Barb.,  ol-j;  Donaldson  v.  The  Miss.  &  Mo.  R. 
Co.,  18  la.,  280.  which  was  a  decision  under  the  former  statute  of  Iowa.  City 
of  Chicago  v.  Major,  18  111.,  349;  Telfer  v.  The  Northern  R.  Co.,  1  Vroom, 
(30  N.  J.),  188;  Quin  v.  Moore.  15  N.  Y.,  432;  Lehman  v.  Brooklyn,  29  Barb., 
234;  Conant  v.  Griffin,  48  III.,  410;  Penn.  R.  Co.  v.  Henderson.  51  Pa.  St., 
315;  Blake  v.  Midland  R.  Co.,  18  Q.  B.,  93;  16  Jur.,  562;  21  L.  J.,  Q. 
B.,  233. 

But  in  some  cases  exemplary  damages  are  expressly  provided  for  by  stat- 
ute, and  even  in  the  absence  of  statutory  provisions  on  the  subject,  it  has 
been  in  some  cases  intimated,  at  least,  that  exemplary  damages  might  be 
proper.  Sherman  v.  The  West.  Stage  Co.,  24  la.,  515;  The  Penn.  R.  Co.  v. 
Zebe,  33  Pa.  St.,  330. 

7  Penn.  R.  Co.  v.  KeUer,  67  Pa.  St.,  300;  Tilley  v.  Hudson  R.  R.  Co.,  29 
N.  Y.,  252;  Duckworth,  adm'r,  v.  Johnson,  4  H.  &  N.,  653;  Paulmier  v. 
Erie  R.  Co.,  34  N.  J.  L.  (5  Vroom).  151  (1870).  And  nothing  can  be  aUowed 
by  way  of  solatium  for  grief  for  loss  of  society.  Pym  v.  Great  N.  R.  Co.,  4 
B.  &  S.,  396;  Jour.  N.  S.,  199;  32  L.  J.  Q.  B.,  377;  11  W.  R.,  922;  8  L.  T. 
N.  S.,  734. 

8  Ohio,  etc.,  R.  Co.  v.  Tindall.  13  Ind.,  366;  Telfer  v.  Northern  R.  Co.  30 
N.  J.  L.  (1  Vroom),  188;  Oldfield  v.  Harlem  R.  Co.,  14  N.  Y.,  310;  Tilley  v. 
Hudson  R.  R.Co.,29  N.  Y.,252;  Donaldson  v.  The  Mississippi,  etc.,  R.  Co., 
18  la.,  280.  Nor  can  the  jury  consider,  in  an  action  for  the  death  of  a  wife, 
the  loss  of  her  society,  nor  the  plaintiff 's  mental  suffering.  Green  v.  Hudson 
R.  R.  Co.,  32  Barb.,  25.  See.  also,  Blake  v.  Midland  R.  Co.,  18  Q.  B.,  93; 
21  L.  J.  Q.  B.,  233. 


INJUKIES  EESULTING  IN  DEATH.  503 

What  it  is  Competeut  to  Show. 

of  the  life  of  the  deceased,  to  those  interested  therein,  as  pro- 
vided by  the  statute;'  and  such  as  arise  from  the  loss  of  per- 
soual  care  and  training,  and  intellectual  and  moral  culture, 
which  would  have  been  received  by  the  parties  had  the 
deceased  lived.'"  The  general  principles  governing  in  such 
cases  have  been  well  stated  by  Comstock,  J.,  in  Quin  v. 
Moore,  lie  says:  "The  theory  of  the  statute  law  is,  that 
the  next  of  kin  have  a  pecuniary  interest  in  the  life  of  the 
person  killed,  and  the  value  of  this  interest  is  the  amount  for 
which  the  jury  are  to  give  their  verdict.  Neither  the  personal 
wrong  or  outrage  to  the  decedent,  nor  the  pain  and  suffering 
he  may  have  endured,  are  to  be  taken  into  the  account.  These 
Avould  be  the  foundation  of  the  action  and  the  criterion  of 
damages,  if  death  had  not  ensued,  and  the  injured  party  had 
brouo-ht  the  suit.  But  the  claim  of  the  administrator,  and 
through  him  of  the  next  of  kin,  is  altogether  different."  " 

§  032.  What  it  is  Competent  to  Show— Expectation 
of  Life. — It  is  competent,  therefore,  to  show  the  exact  situa- 
tion, annual  earnings,  habits,  health,  and  estate  of  the 
deceased;""  the  profits  of  his  labor  and  business;  what  he 
would  have  earned  for  the  support  of  those  entitled  to  recover, 
or  for  the  estate,  as  the  case  may  be;"  and  the  probability  or 
the  reasonable  expectation  of  the  life  of  the  deceased  at  the 
time  of  the  injury,"  and  which  may  be  determined  by  refer- 
ence to  the  "  Carlisle,"  or  other  tables  of  recognized  scientific 
accuracy,  relating  to  the  expectation  of  human  life." 

9  Penn.  R.  Co.  v.  Keller,  67  Pa.  St..  300;  Kresler  v.  Smith,  66  N.  C,  164. 

•o  Mclntyre  v.  N.  Y.  Cent.  R.  Co.,  37  N.  Y.,  287;  3o  How.  Pr.,  36. 

»  15  N.  Y.,  435. 

"  Sherman  v.  West.  Stage  Co.,  24  la.,  515. 

'3  Illinois,  etc.,  R.  Co.  v.  Weldon,  52  lU.,  290. 

'4 Baltimore,  etc.,  R.  Co.  v.  State,  33  Md..  542  (1870). 

•s  Rowley  v.  London,  etc.,  R.  Co.,  L.  R.,  8  Ex.,  221;  42  L.  J.  R.  (N.  S.), 
Exch.  153;  David  v.  South  West,  etc.,  R.  Co.,  41  Ga..  223;  Donaldson  v.  The 
Mississippi,  etc.,  R.  Co.,  18  la.,  280;  Blake  v.  Midland  R.  Co.,  supra. 


504  THE  LAW  OF  DAMAGES. 


Instances. 


§  634.  Instances.— Thus,  under  the  English  act,  where 
the  decedent's  income  survived  him,  his  estate  of  £4,000  a 
year  passing  to  liis  eldest  son,  subject  to  a  jointure  of  £1,000 
a  year  to  his  wife,  and  £800  a  year  to  his  eight  younger  chil- 
dren; it  was  held  that  if  the  death  occasioned  any  one  of  the 
members  of  the  family  the  loss  of  future  pecuniary  benefit, 
the  jury  were  bound  to  consider  such  loss  and  give  damages 
accordingly.'^  So  in  Ireland,  in  an  action  by  a  widow  for  the 
death  of  her  son  aged  fourteen  years,  who  had  never  earned 
any  money,  but  whose  capabilities  were  valued  at  sixpence  per 
day,  it  was  held  that  the  probability  that  he  would  have  earned 
more  and  would  have  devoted  a  part  of  his  earnings  to  the 
support  of  his  mother,  were  proper  matters  to  be  considered 
by  the  jury  in  estimating  damages."  So,  under  the  statutes 
of  Illinois,  it  is  necessary  for  the  administrator  to  show  that 
the  deceased  left  a  widow  or  next  of  kin,  who  are  pecuniary 
losers  by  his  death.  But  it  is  immaterial  who  they  are,  or 
which  of  them  is  entitled  to  the  amount  recovered,  or  whether 
the  one  claiming  to  be  the  widow  is  in  fact  such  widow  or 
not."  And  under  the  former  statute  of  Iowa,  which  provided, 
''  that  when  a  wrongful  act  produces  death,  the  perpetrator  is 
civilly  liable  for  the  injury,  the  parties  to  the  action  shall  be 
the  same  as  though  brought  on  a  claim  founded  on  contract 
against  the  wrongdoer  and  in  favor  of  the  estate  of  the 
deceased," '"  it  was  held  that  the  damages  recovered,  accrued 
to  the  estate  of  the  deceased,  and  not  to  the  next  of  kin.  Hence, 
the  measure  of  damages  was  the  pecuniary  loss  to  the  estate 
by  reason  of  the  death,  and  not  the  past  or  prospective  loss  of 

'6  Pym.  V.  The  Great  Northern  R.  Co.,  4  B.  &  S.,  396,  affirming  2  B.  &  S., 
759;  s.  c,  32  L.  J.  (N.  S.)  Q.  B.  377;  affirming  s.  c.  in  Q.  B.  31  L.  J. 
(N.  S.),  249.    See,  also,  MaJ^le  on  Dam.,  392,  393 

'7  Condon  v.  The  Great  S.  W.  R.  Co.,  16  Irish  L.  R.  (N.  S.),  415. 

'8  Conant  v.  Griffin,  48  III,  410  (1868).  This  question  could  not  be  impor- 
tant until  the  time  for  distribution  by  the  administrator  should  arrive.  Id. 

'9  Iowa  Rev.  1860,  §4111. 


INJUEIES  KESULTING  IN  DEATH.  505 

Legal  Eight  to  Benefit  from  the  Life  not  Essential— Presumptions. 

the  next  of  kin.^"  And  it  was  further  held  that  the  jury  might 
find  such  damage  as  the  estate  of  the  deceased  suffered  pecu- 
niarily by  the  death,  but  that  thej  should  not  allow  anything 
on  account  of  the  pain  and  suffering  of  the  deceased  by  reason 
of  the  injury  before  his  death,  nor  for  the  grief  and  distress 
of  his  family  on  account  thereof,  nor  for  the  loss  of  liis  society, 
and  that  it  was  proper  to  submit  evidence  to  the  jury  show- 
ing the  exact  situation  of  the  deceased,  his  occupation,  annual 
earnings,  health,  habits  and  estate,  as  affecting  the  question  of 
damages.^' 

§  636.  Legal  Right  to  Benefit  from  the  Life  not 
Essential — Presumptions. — It  is  not  essential  to  the  main- 
tenance of  the  action  that  the  person  to  be  indemnified  should 
have  a  legal  right  to  some  pecuniary  benefit,  which  would 
have  resulted  from  the  continuance  of  the  life  of  the  decedent.' 
Xor  should  a  nonsuit  be  directed,  if  the  services  of  the  deceased 
might  have  been  of  some  value  to  the  next  of  kin,  where  the 
statute  provides  that  a  recovery  may  be  had  for  their  benefit.* 
!Nor  is  the  jury  restricted  to  nominal  damages,  although  there 
is  no  direct  proof  of  pecuniary  loss.^     Nor  is  proof  of  the 

=°  Sherman  v.  The  West.  Stage  Co.,  24  la.,  615.  See,  also,  Penn.  R.  R. 
Co.  V.  Goodman,  62  Pa.  St.,  329. 

^'  Donaldson  v.  The  Miss.  &  Mo.  R.  Co.,  18  la.,  280.  The  question, 
"What  did  the  deceased  usually  earn?  "  is  proper  as  being  an  inquiry  of 
importance  in  forming  an  estimate  of  the  pecuniary  loss.  Mclntyrev.  N. 
T.  Cent.  R  Co.,  37  N.  Y.,  287;  47  Barb.,  515;  35  How.  Pr.,  36.  In  case  of 
injuiy  resulting  in  the  death  of  a  minor,  the  damages  must  be  the  pecuniary 
loss  to  the  parents.  Potter  v.  Chicago  &  N.  W.  R.  Co..  21  Wis.,  372.  See, 
also,  Franklin  v.  S.  E.  R.  Co.,  3  H.  &  N.,  211;  4  Jur.  N.  S.,  565. 

'  The  Illinois,  etc.,  R.  Co.  v.  Barron,  5  WaU.,  90;  Dalton  v.  South  E.  R. 
Co.,  4  .Jur.  X.  S.,  711;  27  L.  J.  C.  P.,  277;  4  C.  B.  N.  S.  296.  See,  also, 
Franklin  v.  S.  E.  R.  Co.,  supra. 

2  Mclntyre  v.  New  York  Cent.  R.  Co.,  43  Baxb.,  532;  s.  c.  on  appeal,  37 
N.  Y.,  287. 

3  Ihl  V.  Forty-Second  St.,  ect.,  Co.,  47  N.  Y.,  317.  The  jury  may  infer 
without  proof  that  the  services  of  a  boy  from  eleven  until  twenty  years  of  age 
were  valuable  to  his  father,  and  estimate  that  value  upon  their  own  knowl- 
edge. O'Mara  v.  Hud.  R.  R.  Co.,  38  N.  Y.,  445;  Drew  v.  Sixth  Av.  R.  Co., 
26  Id.,  49;  Oldfield  v.  New  York,  etc.,  R.  Co.,  14  Id.,  310;  Penn.  R.  Co.  v. 
McCloskey,  23  Pa.  St.,  526;  Penn.  R.  Co.  v.  Bantom,  54  Pa.  St.,  495. 


506  TPIE  LAW  OF  DAMAGES. 

Value  of  an  Annuity— Carlisle  Tables- Statutes,  etc. 

wages  paid  the  deceased  at  the  time  of  his  injury  or  death, 
necessary  to  entitle  the  phiintifF  to  substantial  damages,  on  the 
ground  of  being  deprived  of  suj^port  and  maintenance,  or  of 
the  benefits  of  the  labor  or  profits  of  ^the  business  of  the 
deceased,"  But  under  the  statute  of  Ohio  it  has  been  held, 
that  the  value  of  the  services  will  not  be  presumed,  unless  the 
action  is  for  the  benefit  of  the  widow  and  children,^ 

§  637.    Value  of  an  Annuity  —  Carlisle  Tables.— 

In  Eiififland,  where  the  deceased  had  been  under  a  covenant  to 
pay  his  mother  an  annuity  of  £200  during  their  joint  lives,  it 
was  held  material  to  know  the  value  of  such  an  annuity  on  an 
average  life  of  his  age;  and  it  was  held  proper  to  determine 
this  from  the  experience  of  life  insurance  companies,  and  to 
refer  for  this  purpose  to  the  "  Carlisle  Tables,"  which  were  in 
use  among  such  companies,  for  this  purpose."  So,  it  has  been 
held  that,  as  the  dauiages  in  these  cases  are  confined  to  the 
pecuniary  loss,  it  is  erroneous  to  leave  the  amount  to  the 
uncontrolled  discretion  of  the  jury;  but  that  it  is  not  error  for 
the  court,  after  laying  down  the  law,  to  tell  the  jury  that  much 
is  left  to  their  sound  discretion  in  assessing  the  amount  of 
damages.' 

§  638.  The  Statutes  have  no  Extra-territorial  Opera- 
tion.— The  statutes  have  no  extra-territorial  operation,  and  do 
not  apply  where  the  suit  is  brought  in  one  state  for  an  injury 
done  in  another  state,  or  in  a  foreign  country,  or  on  the  high 
seas;  and  no  recovery  can  be  had  in  such  cases,  unless  it  is 

4  Baltimore,  etc.,  R.  Co.  v.  State,  etc.,  24  Md.,  271. 

s  Donahue's  Adm'r  v.  The  Ohio,  etc.,  L.  &  T.  Co.,  1  Disney,  257.  See, 
also,  Lucas  v.  New  York  Cent.  R.  Co.,  32  Barb.,  25. 

6  Rowley  v.  London,  etc.,  R.  Co..  L.  R.  8.  Ex.,  221;  L.  J.  R.  (N.  S.),  42, 
Exch.,  15.3.  See,  also,  David  v.  S.  W.  R.  Co.,  41  Ga.,  223;  Baltimore,  etc., 
R.  Co.  V.  State,  33  Maryland,  542;  Donaldson  v.  Miss.  &  Mo.  R.  Co.,  18  la., 
280. 

^  Penn.  R.  Co.  v.  O^ier,  35  Penn.  St.,  60;  Penn.  R.  Co.  v.  Vandever,  86 
Penn.  St.,  298. 


INJURIES  RESULTING  IN  DEATH.  507 


Widow-Children-Wealtli  of  Defendant-Death  of  Child. 

alleged  and  proved  that  the  law  of  the  place  where  the  tort 
was^comniitted  is  the  same  in  this  respect  as  the  law  of  the 
forum/ 
§  639 .   Widow-ChiUlren— Wealth  of  the  Defendant. 

—In  Massachusetts,  under  the  statute  of  that  state,  it  has  been 
held,  in  an  action  by  a  widow  for  her  husband's  death,  that  the 
fact  that  she  had  children  dependent  upon  her,  did  not  go  to 
enhance  damages."  And  in  all  such  cases  evidence  of  the 
defendant's  wealth  is  inadmissible/" 

§  640.  Death  of  a  Child-Limitation.— In  an  action  for 
damages  for  an  injury  resulting  in  the  death  of  a  minor  child, 
the  ptirents  may  recover  the  pecuniary  value  of  the  child's 
services  during  his  minority,  together  with  the  expenses  of 
care  and  attention,  medical  attendance,  etc.,  during  his  disa- 
bility  in  consequence  of  the  injury."  So,  under  the  English 
act  where  it  appeared  in  an  action  by  the  father  for  an  injury 
resulting  in  the  death  of  his  son,  that  the  father  was  old  and 
infirm,  and  the  son  young  and  earning  good  wages,  and  had 
assisted  the  lather,  and  that  the  father  had  a  reasonable  expec- 
tation of  pecuniary  benefits  from  the  continuance  of  the  son's 
life,  the  court  held  that  the  action  was  maintainable.'^     But 

Trans  Co.,  45  Barb.,  226;  Selma,  etc.,  R.  Co.  v.  Lacy,  43  Ga.,  4bl  (1871), 
NaXiUe,  etc.,  R.  Co.  v.  Elkin,  6  Coldw.  (Tenn.),  582.  Nor  can  he  hus- 
W  nnder  the  laws  of  Georgia,  recover  damages  for  the  homicide  oi  his 
S.'  Georgia  R.  Co.  v.  Wymi,  42  Ga.,  331.  The  right  to  ^'fover^^v..ges 
havmg  accrued,  the  amount  of  the  recovery  cannot  afterwards  be  hmited  by 
act  of  the  legislature.    Kay  v.  Penn.  R.  Co..  6o  Pa.  St..  269. 

9  Shaw  V.  Boston,  etc.,  R.  Co.,  8  Gray,  45.  ,      ,  ^    j     . 

.o  Conant  v  Griffin,  48  HI.,  410,  in  which  case  the  wealth  of  the  defendant 
was  held  immaterial  in  the  measure  of  damages,  as  it  could  not  m  any  man- 
ner affect  the  pecuniary  loss.  ■  -K  iVo 

"  Penn  R  Co.  v.  Zebe.  33  Pa.  St.,  318.  See,  also,  under  Ld.  CampbeU  s 
Act,Condon-v.The  Great  S.  W.  R.  Co.,  16  Irish  ^■^^^^;^^^ 
V.  Mayor  of  N.  Y.,  3  Comst.,  439;  Potter  v.  Chicago,  etc.,  R.  Co.,  ^i  Wis., 

'''•prankHn.  Adm.  v.  The  S.  E.  R.  Co.,  3  H  &  K,  21L  And,  see,  Dalton 
V.  The  S.  E.  R.  Co.,  4  C.  B.  (N.  S.),  296;  27  L.  J.  R.  C.  P.,  227. 


508  THE  LAW  OF  DAMAGES. 

In  Pari  Delicto. 

the  prospective  damages  for  tlie  loss  occasioned  by  tlie  death 
of  a  child  are  usually  limited  to  the  period  of  minority." 

§  641.  Ill  Pari  Delicto. — It  was  held  in  Georgia,  that  the 
courts  of  that  state  could  not,  since  the  re-establishment  of  the 
national  autlu)rity,  entertain  an  action  for  the  recovery  of 
damages  from  a  railroad  company,  for  negligently  causing  the 
death  of  the  plaintiff's  husband,  where  the  casualty  occurred 
while  the  company  was  transporting  the  decedent,  as  an  offi- 
cer hi  the  Confederate  service^  for  hire,  and  was  paid  by  the 
Confederate  government,  on  the  ground  that  the  employes  of 
the  company  and  the  decedent  were,  while  engaged  in  such 
transportation,  in  pari  delicto.^* 

'3  Ford  V.  Monroe,  20  Wend.,  210;  State  of  Maryland  v.  Baltimore,  etc., 
R.  Co.,  24  Md.,  84;  s.  c,  5  Am.  Law  Reg.  (N.  S.).  397.  But  it  is  held,  that 
in  an  action  by  a  child  for  the  death  of  the  mother,  there  is  no  reason  in 
limiting  the  damages  for  the  loss  of  the  mother's  care  to  the  minority  of  the 
child;  and  if  the  jury  are  persuaded  that  this  care  would  have  continued 
afterwards,  they  are  at  liberty  to  give  damages  therefor.  Filley  v.  Hudson 
R.  R.  Co.,29N.  Y.,  252. 

'4  Martin  v.  Wallace,  40  Ga.,  52. 

In  a  recent  article  in  the  American  Law  Review,  Vol.  8,  p.  523,  the 
writer  reviews  a  recent  French  treatise  on  the  law  of  damages  in  cases  of 
torts,  and  observes  as  follows:  "  The  question  whether  one  party  to  a  duel 
can  maintain  an  action  agamst  another  is  discussed.  The  author  says :  '  On 
the  contrary,  one  who  in  a  duel  has  wounded  or  killed  his  adversnry  should 
be  held  liable  to  his  adversary  or  to  his  family,  even  though  a  criminal  pro- 
ceeding should  be  decided  in  his  favor.  A  duel  is  always  an  ilHcit  act.  It 
is  a  wrong  to  the  laws  of  religion,  of  morality,  and  of  society,  and  furnishes 
ground  for  an  action.' 

'  Suppose  the  person  killed  had  been  insulted;  that  his  adversary  had  re- 
fused him  all  other  satisfaction;  that  he  had  knowingly  sought  advantage  in 
his  skill  in  the  handling  of  weapons.  All  wiU  admit  that  he  has  under 
these  circumstances  been  guilty  of  a  crime,  notwithstanding  the  distance 
which  the  prejudices  of  society  and  the  chances  of  combat  place  between  such 
a  duel  and  an  ordinary  assassination.  But  even  where  it  is  the  party  who 
was  insulted  who  is  the  victor;  where  there  has  been  au  equality  of  sti-ength 
and  address;  in  short,  under  the  most  favorable  circumstances,  a  duel  is 
none  the  less  culpable.  It  is  a  shock  to  public  order — to  the  principle  that 
in  a  well  regulated  society  no  one  should  take  the  law  into  his  own  hands.' 

'  It  is  no  defense  against  the  party  wounded,  or  against  the  representatives 
of  him  who  has  been  killed,  that  he  accepted  the  event  of  the  combat.    The 


INJURIES  RESULTING  IN  DEATH.  609 


Damages  in  Other  and  Special  Cases  Resulting  in  Death. 


§  642.    Damages  in  Other  and  Special  Cases  Result- 
ing in  Death.— It  is  provided  by   statute  in  some  of  the 
states,  that  actions  for  personal  injuries,  and  in  others,  tliat  all 
actions  for  injuries    shall  survive  the  death   of   the   person 
injured,  or  of  the  injurer.     In  the  absence  of  any  other   pro- 
vision in   relation  to  injuries  resulting  in  death,  the  represen- 
tatives of  the  deceased  can  recover  in  such  cases  whatever  the 
deceased  might  have  recovered  at  the  time  of  his  death.  Thus, 
in  Massachusetts,  where  such  a   statute  exists,  and  where  it 
appeared  that  the  defendant  negligently  sold  as  and  for  the 
tincture  of  rhubarb,  a  harmless  medicine,  two  ounces  of  laud- 
anum, a  dangerous  and  deadly  poison,  to  a  party  who  procured 
it  for  the  purpose  of  administering  it  as  a  medicine  to  his  ser- 
vant, the  plaintiff's  intestate,  and  which  was  administered  to 
him,' and  from  the  effects  of  which  he  died;  it  was  held  that 
the  defendant  was  liable  fV.r  the  tort  without  regard    to  the 
question  of  privity  of  contract  between  them.'^     So,  in  Michi- 
gan it  was  held,  under  such  a  statute,  that  the  husband  may 
maintain  an  action   for  the  loss  of  his  wife's  services,  caused 
by  the  defendant's  malpractice,  notwithstanding  the  injury 
resulted  in  death;  but  that  the  damages  should  be  limited  to 
the  loss  of  service  between  the  time  of  the  injury  and  death." 
But  under  the  provisions  of  the  Massachusetts  statute,  it  Avas 
held  that  no  action  lies  where  the  death  is  instantaneous,  on  the 

a-reement  to  fi-ht  is  radically  void,  as  contrary  to  good  order  and  good 
nTorals  In  vain  can  the  victor  set  up  that  he  acted  in  self-defense.  He 
exposed  himself  voluntarily  to  danger.     His  defense  was  unnecessary.' 

'  From  the  point  of  \iew  of  a  joint  fault  there  is  nothing  to  defeat  the 
action  That  there  was  a  double  fault  in  the  agreement  to  fight  is  incontes- 
table, but  the  damage  is  wholly  upon  one  side.  The  act  which  caused  it- 
its  immediate  and  direct  cause-is  the  single  act  of  one  of  the  parties.  The 
circumstances  of  the  duel,  particularly  the  provocation,  if  it  came  from  the 
injured  party,  can  only  bo  shown  in  mitigation  of  damages.'  " 

•5  Norton  v.  Sewall,  106  Mass.,  143.  See  also  Davidson  v.  Nichols,  11 
Allen.,  514;  McDonald  v.  Snelling,  14  Allen,  290;  Wellington  v.  Downer 
on  Co.,  104  Mass..  64. 

'SHyattv.  Adams,  16  Mich.,  180. 


510  THE  LAW  OF  DAMAGES. 

Damages  in  Other  and  Special  Cases  Resulting  in  Death. 

ground  that  no  action  ever  accrued  to  the  decedent,  and  none 
consequently  could  survive."  x\nd  the  same  doctrine  was  held 
under  the  statute  of  Tennessee."  But  in  Connecticut,  under 
a  similar  statute,  it  was  held  that  though  the  death  was  instan- 
taneous, an  action  could  he  maintained,  and  the  court  declared 
the  decision  in  Kearney  v.  The  Boston  c&  Worcester  R.  Co., 
"  nice  and  technical.'""  And  in  Massachusetts,  where  the 
decedent  survived  but  a  few  hours,  though  unconscious,  it  was 
held  that  the  action  could  be  maintained.^" 

•7  Kearney  V.  Boston,  etc.,  R.  Co.,  9  Cush,  108. 

'8  Louisville  &  Nashville  R.  Co.  v.  Burke.  6  Coklw.  (Tenn.),  45.  The 
Massachusetts  Statute  was  as  follows:  "The  action  of  trespass  on  the  case 
for  daraag'e  to  the  person,  shall  hereafter  survive,  so  that  in  the  event  of  the 
death  of  any  person  entitled  to  bring  such  action,  or  liable  thereto,  the  same 
may  be  prosecuted  or  defended  by  or  against  his  executor  or  administrator, 
in  the  same  manner  as  if  he  were  living."  (Act  1842,  Ch.  89,  1)  The  Ten- 
nessee Statute,  under  which  the  action  in  the  foregoing  case  of  The  Louisville 
&  Nashville  R.  Co.  v.  Burke  was  based,  is  as  follows:  "The  right  of  action 
which  a  person  who  dies  from  injuries  received  from  another,  or  whose  death 
is  caused  by  the  wrongful  act  or  omission  of  another,  would  have  had 
against  the  wrongdoer  in  case  death  had  not  ensued,  shall  not  abate  or  be 
extinguished  by  his  death;  but  shall  pass  to  his  personal  representatives 
for  the  benefit  of  his  widow  and  next  of  kin,  fi"ee  from  the  claims  of  liis 
creditors."  (2  Thompson  &  Steger's  Tenn.  Stat.,  1872,  2291.)  The  Ten- 
nessee statutes  also  provide  certain  precautions  to  be  observed  by  railroad 
companies,  and,  "every  railroad  company  that  fails  to  observe  these  pre- 
cautions, or  cause  them  to  be  observed  by  its  agents  or  servants,  shall  be 
responsible  for  all  damages  to  persons  or  property  occasioned  l^y,  or  res- 
ulting from,  any  accident  or  collision  that  may  occur.  No  railroad  com- 
pany that  observes  or  causes  to  be  observed  these  precautions  ,  shall  be  re- 
sponsible for  any  damages  done  to  person  or  property  on  its  road.  The 
proof  that  it  has  observed  said  precautions  shall  be  upon  the  company."  1 
Id.,  §§1167,1168,  supra. 

'sMurphy  v.  New  York,  etc.,  R.  Co.,  30  Coiln.,  184. 

«  HoUenbeck  v.  Berkshire  R.  Co.,  9  Cush.,  478. 

The  statutes  of  Kentucky  provide  as  follows  :  "No  right  of  action  for 
personal  injur}',  or  injury  to  real  or  personal  estate  shall  cease  or  die  with 
the  person  injuring  or  the  person  injured,  except  actions  for  assault  and 
battery,  slander,  criminal  conversation,  and  so  much  of  the  action  for  mali- 
cious prosecution  as  is  intended  to  recover  for  personal  injury;  but  for  any 
injury  other  than  those  excepted,  an  action  may  be  brought  or  revived  by 
the  personal  representatives,  or  against  the  personal  representative,   heir  or 


INJUKIES  RESULTING  m  DEATH.  511 

Distinction  between  Injuries,  etc. 

§  643.  Distinction  between  Injuries  to  the  Person  of 
the  Deceased  and  Injuries  to  Others  from  the  Death — 
Death  Instantaneous. — It  may  be  observed  that  the  statute 
which  continues  and  keeps  alive  a  cause  of  action  for  an  injury, 
in  case  of  the  death  of  a  party  therefrom,  has  no  reference  to 
those  damages  resulting  to  third  parties  from  injuries  that 
produce  death.  We  have  already  considered  the  damages 
under  statutes  providing  for  damages  in  the  latter  case,  which 
do  not  necessarily  include  damages  such  as  deceased  might 
himself  have  recovered,  or  been  entitled  to,  at  the  time  of  his 
decease.  It  would,  of  course,  be  competent  for  the  legislature 
to  give  a  remedy  to  the  representatives  of  the  deceased,  not 
only  for  the  damages  which  the  deceased  might  have  recov- 
ered, but  also  for  such  damages  as  the  widow,  husband,  or 
next  of  kin  may  have  sustained  by  reason  of  the  death  of  the 
injured  party.     If  the  statute  provides  that  all  rights  of  action 

devisee,  in  the  same  manner  as  causes  of  action  founded  on  contract."  In  a 
recent  case  in  the  supreme  court  of  that  state,  where  a  construction  of  this 
statute  was  involved,  it  was  held  that,  although,  where  the  death  was  in- 
stantaneous there  could  be  no  recovery,  yet  in  cases  not  embraced  within  the 
exceptions  of  the  statute,  if  there  is  an  appreciable  interval  between  the  in- 
fliction of  the  injury  and  the  death,  the  personal  representative  of  the  de- 
cedent may  recover  damag'cs  for  the  injury.  The  petition  alleged  that  the  de- 
fendants were  diniggists,  and  that  their  prescription  clerk,  in  attempting  to 
fill  a  physician's  prescription,  through  gross  and  culpable  neghgence,  put  up 
croton  oil  instead  of  linseed  oil,  which  oUwas,  inconsequence  of  such  mistake 
administered  to  the  plaintiff's  intestate,  and  that  it  caused  him  great  suffer- 
ing and  agony,  and  did  him  serious  and  irreparable  injury,  and  was  the  im- 
mediate cause  of  his  death  on  the  same  day.  It  was  held  that  this  petition 
stated  a  good  cause  of  action.  The  court  say:  "Whilst  we  hold  that  in  order 
to  authorize  a  recovery  in  such  cases,  there  must  be  an  appreciable  interval 
between  the  infhction  of  the  injury  and  the  death,  and  that  no  recovery  can 
be  had  where  the  death  is  practically  instantaneous  or  immediate,  we  think 
the  petition  in  this  case  shows  that  between  the  time  the  poison  was  admin- 
istered and  the  moment  at  which  the  death  occurred,  there  was  an  apprecia- 
ble interval  of  time,  during  which  the  intestate  endured  great  suffering  and 
agony.'  For  such  suffering  and  agony  the  appellant  is  entitled  to  recover 
just  what  the  intestate  could  have  recovered,  if  he  had  survived  and  had  ob- 
tained perfect  and  permanent  relief  at  the  moment  of  his  death."  Hansford 
V.  PajTie,  2  Cent.  L.  J.,  722  (1875). 


513  THE  LAW  OF  DAMAGES. 

statutes  of  Iowa— Exemplary  Damages  Under. 

shall  survive,  and  also  that  the  representatives  of  the  deceased 
may  recover  all  pecuniary  losses  sustained  by  the  wrongful 
act,  neglect,  or  default  of  another  M-hich  results  in  death,  then 
the  representatives  may  recover,  under  such  circumstances, 
not  only  the  damages  the  deceased  might  have  been  entitled 
to  at  the  time  of  his  decease,  but  also  all  such  damages  as  the 
heirs  or  next  of  kin  of  the  deceased,  according  to  the  provis- 
ions of  the  statute,  may  have  sustained  by  the  death.  There 
is  an  essential  distinction  between  the  two  causes  of  action. 
Both  rest  upon  statutory  provisions;  and  there  is  nothing 
inconsistent  in  a  recovery  for  both  by  the  same  party  or 
parties,  whenever  the  statute  authorizes  it,°' 

It  may  be  further  observed  in  reference  to  the  doctrine,  that 
where  the  death  is  instantaneous  no  recovery  can  be  had;  that 
in  nearly,  if  not  in  every  case,  there  is  an  appreciable  time 
between  the  injury  which  causes  the  death  and  the  entire 
decease  of  the  injured  party.  It  would,  perhaps,  be  impossible 
to  cause  death  by  any  act  that  would  not  leave  at  least  a  very 
limited  time  between  the  injury  and  the  death.  The  mere 
length  of  time  should  not  affect  the  right.  Whether  it  is  one 
second  or  one  hour  cannot  be  material. 

§  645.  The  Statutes  of  Iowa— Exemplary  Damages 
Under. — The  present  statutes  of  Iowa,  on  this  subject,  are 
unlike  most  of  the  statutes  of  the  various  states."  They  do  not 
expressly  provide  for  damages  to  the  parties  designated  therein, 
for  the  death  of  any  person  injured,  as  most  of  the  statutes 
do.  They  only  provide  that  "  all  causes  of  action  shall  sur- 
vive;" *  *  *  "that  when  a  wrongful  act  produces 
death,  the  damages  shall  be  disposed  of  as  personal  prop- 
erty belonging  to  the  estate  of  the  deceased,"  *  *  * 
and   "  that  every   corporation  operating   a   railway  shall   be 

"  See  S.  &  R.  on  Neg.,  611,  and  notes  4  &  5.    See,  infra,  §  645,  where  it 
is  apparent  that  such  are  the  provisions  of  the  Iowa  statutes. 
«  See  the  statutes  set  out  at  length,  ante,  §  629,  note  5. 


INJURIES  EESULTIXG  IN  DEATH.  513 

statutes  of  Iowa— Exemplarj'  Damages  Under. 

liable  for  all  damages  sustained  by  any  person,  including 
employes  of  such  corporation,  in  consequence  of  the  neg- 
lect of  agents,  or  by  any  mismanagement  of  the  engineers 
or  other  employes  of  the  corporation,  and  in  consequence 
of  the  willful  wrongs,  M'hether  of  commission  or  omission,  of 
snch  agents,  engineers,  or  other  employes,  when  such  wrongs 
are  in  any  manner  connected  with  the  operation  of  any  rail- 
way, on  or  about  which  they  shall  be  employed,  and  no 
contract  which  restricts  such  liability  shall  be  legal  or  bind- 
ing." The  supreme  court  of  that  state  has  given  its  construc- 
tion to  the  latter  statute,  by  construing  the  act  from  which  a 
portion  of  it  was  derived,"  so  far  as  to  hold  that  the  words, 
"  shall  be  liable  for  all  damages  sustained  by  any  person," 
includes  a  party  who  sustains  a  damage  by  the  death  of  the 
party  injured,  and  that  the  representatives  of  the  deceased 
may  recover  damages  therefor.' 

»  Acts  9th  Gen.  Assem,  Iowa,  Ch.  169,  8. 

3  Philo  V.  The  Illinois  Cent.  R.  Co.,  33  la.,  47.,  n^here  Beck,  J.,  in  deliver- 
ing' the  opinion  of  the  court,  remarks:  "That  the  intention  of  the  legislature, 
in  the  enactment  of  the  statute,  accords  with  its  language,  there  can  he  no 
doubt.  It  cannot  be  presumed  that  the  law-makers  would  secure  to  em- 
ployes of  railroads,  a  remedy  for  injuries,  not  resulting  in  death,  but  for  the 
greater  injuries  whereby  Hfe  is  destroyed  they  would  make  no  provision; 
thus  securing'  to  the  employe  himself  compensation  for  the  lesser  injury,  but 
denying  to  his  family,  who  are  dependent  upon  him  for  support,  compensa- 
tion for  the  loss  they  sustain  in  his  death." 

With  due  deference  to  the  court,  in  its  construction  of  the  statute,  we  can- 
not resist  a  diiferent  conclusion.  The  question  is  not  what  the  legislature 
ought  to  have  done,  but  what  was  intended,  as  derived  from  the  language, 
and  the  evident  purposes  they  had  in  view.  The  statute  already  provided 
that  causes  of  action  should  survive. 

The  language  of  the  statute,  making  raUroad  corporations  liable,  is  such  as 
we  may  well  suppose  the  legislature  would  use  if  they  intended  to  limit  the 
damages  to  the  party  injured.  No  mention  is  made  of  damages  resulting- 
from  the  death  of  a  party  by  reason  of  injuries  received,  which  we  find  in  all 
the  statutes  relating  to  this  subject,  where  it  is  designed  to  give  damages 
for  the  death  of  a  party. 

Aside  from  any  purpose  to  extend  the  liability  of  railroad  corporations  to 
damages  to  third  parties,  resulting  from  the  death  of  another,  it  is  reasona- 
ble to  infer  that  their  purpose,  from  the  language  of  the  act,  was  to  make 
33 


514  THE  LAW  OF  DAMAGES. 

California  Statute— Exemplary  Damages  Under. 

Under  the  Iowa  statutes  there  would  appear  to  be  no  reason 
why  the  administrator  of  the  deceased  may  not  only  recover 
such  damages  as  the  deceased  was  entitled  to  at  his  death, 
including  exemplary  damages,  but  also,  under  the  construc- 
tion given  to  the  act  relating  to  railroad  companies,  as  we  have 
seen,  all  such  damages  as  result  to  the  estate  by  reason  of  the 
death.  Whatever  right  the  deceased  had  at  his  death  to 
recover  damages,  succeeds  to  the  administrator  of  his  estate, 
the  damages  to  "  be  disposed  of  as  personal  property  belong- 
ing to  the  estate  of  the  deceased,  except  that  if  the  deceased 
leaves  a  husband,  wife,  child,  or  parent,  it  shall  not  be  liable 
for  the  payment  of  debts."  It  seems,  therefore,  to  follow,  on 
general  principles,  that  where  the  administrator  seeks  to  recover 
against  a  railroad  company  for  such  damages  as  the  deceased 
was,  at  his  death,  entitled  to,  and  also  for  the  damages  sus- 
tained to  the  estate  by  reason  of  his  death,  he  would  also  be 
entitled  to  recover  exemplary  damages  for  an  injury  to  the 
deceased,  whenever  he  could  have  recovered  the  same,  had  he 
lived.^ 

§  647.  California  Statute  — Exemplary  Damages 
Under. — It  will  be  observed  that  the  California  act  expressly 
provides  for  exemplary  damages.  And  under  this  act,  it  has 
been  recently  held  that  the  jury  may  give  exemplary  damages 
for  the  death  of  an  infant  caused  by  the  negligence  of  the 

such  corporations  liable  for  even  the  willful  acts  of  their  agents  and  em- 
ployes ;  and  this  would  appear  sufficient  to  require  such  a  statute,  and  to  call 
for  the  legislatives  attention  which  it  received. 

Under  the  statutes  of  Kentucky  and  Connecticut,  it  seems  that  the  plaintiff 
may  recover  such  damages  as  the  deceased  might  have  recovered  if  death 
had  not  ensued.  Thus,  in  an  action  in  the  former  state,  by  the  personal 
representatives  of  one  killed  by  the  fault  of  a  railroad  company,  he  may 
recover  not  only  such  actual  damages  as  the  deceased  might  have  recovered, 
but  also  exemplary  damages.  Bowler  v.  Lane,  3  Met.  (Ky.),  311;  Chiles  v. 
Drake,  2  Id.,  146.  See  also,  in  Connecticut,  GoodseU  v.  Hartford,  etc.,  R.  Co., 
33  Conn.,  51;  Murphy  v.  N.  Y.  &  N.  H.  Co.,  29  Conn.,  496. 

•♦  Sherman  v.  The  Western  Stage  Co.,  24  la.,  515,  where  it  was  held  that 
the  damages  were  the  pecuniary  loss  to  the  estate. 


INJURIES  RESULTING  IN  DEATH.  515 


Effect  of  a  Policy  on  Life  of  Deceased— "SVbo  Entitled  to  Eecover. 


defendant."  '  But  this  statute  and  the  Iowa  statute  are  excep- 
tions, in  tliis  respect,  to  the  statutes  generally  on  this  subject; 
and  in  the  construction  of  those  modeled  from  the  English 
act,  as  we  have  noticed,  whether  the  acts  expressly  provide  for 
the  pecuniary  damages  sustained  or  not,  it  has  generally  been 
held,  that  the  damages  should  only  embrace  such  injuries  as 
are  of  a  pecuniary  nature. 

§  648.  The  Effect  of  a  Policy  on  the  Life  of  the 
Deceased.— On  the  question  whether  the  amount  of  the  recov- 
ery can  be  affected  under  the  English  act,  and  those  substan- 
tially like  it,  by  money  received  by  the  person  for  whose  ben- 
efit the  suit  is  brought,  or  by  the  estate  of  the  deceased,  on  a 
policy  of  insurance  on  the  life  of  the  deceased,  there  has  been 
some  diversity  of  decision.  On  the  one  hand,  Lord  Campbell, 
the  author  of  the  English  act,  held  that  it  should  be  taken  into 
account  in  assessing  damages,  and  deducted  from  the  amount 
of  the  pecuniary  loss."  AVhile,  on  the  other  hand,  in  this 
country  it  has  been  held  otherwise.' 

§649.  Who  Entitled  to  Recover,— Under  the  English 
act,  and  the  statutes  of  the  various  states  copied  in  substance 
from  it,  the  right  to  recover  is  based  upon  the  death  of  the 
party,  and  the  pecuniary  loss  thereby  sustained  by  the  wife, 
husband,  parent,  child,  or  the  estate.     And  where  the  execu- 

s  Myers  V.  San  Francisco,  42  Cal.,  215  (1871).  In  an  action  under  the 
statute  of  California  for  the  benefit  of  the\vidow  and  children  of  the  deceased, 
if  the  w-idow  dies  before  the  trial  of  the  action  the  question  of  compensa- 
tion to  her  no  longer  exists,  and  the  only  question  to  be  determined  in 
relation  to  damages,  is  what  will  be  just  compensation  to  the  children  for 
the  loss  of  the  father.    Taylor  v.  Western,  etc.,  R  Co.,  45  Cal.,  323. 

6  Hicks  V.  The  Newport,  etc.,  R.  Co..  B.  &  S.,  403.  But  see  Bradbum 
V.  Great  W.  R.  Co.,  44  L.  J.  R.  (N.  S.)  C.  P.  9;  s.  c.  L.  R.  10  Exch.,  1, 
where  in  an  action  for  a  personal  injury  through  negligence,  it  was  held  that 
no  deduction  could  be  made  on  account  of  money  received  on  a  policy  of 
insurance  against  the  accident.  Yates  v.  White,  4  Bing.,  N.  C,  272;  5  Scott, 
640. 

7  Althorf  V.  Wolfe,  22  N.  Y.,  355;  Harding  v.  Town.,43  Vt.,  536;  Pitts- 
burgh, etc.,  R.  Co.  V.  Thompson,  56  111.,  138  (1870). 


516  THE  LAW  OF  DAMAGES. 

Conclusions— Contributory  Negligence. 

tor  or  administrator  of  the  deceased  is  authorized  or  required 
to  sue  therefor,  he  is  a  mere  nominal  party,  who  sues  for  the 
benefit  of  the  parties  named  in  the  statute,  or  tlie  estate.  And 
if  for  the  benefit  of  several  parties,  they  should  severally  be 
awarded  damages  proportioned  to  the  injury  resulting  to  each 
from  the  death.*  Thus,  if  the  victim  of  the  wrongful  act, 
neglect,  or  default  of  another,  who  dies  in  consequence  thereof, 
leaves  a  wife,  parent,  or  child,  and  they  were  entitled  to  an 
annuity  in  diff'erent  amounts  dependent  upon  the  life  of  the 
deceased,  "  the  recovery  would  be  in  the  name  of  the  executor 
or  administrator,  but  it  should  fix  the  amount  going  to  each, 
and  it  would  be  proportioned  to  the  amount  of  the  respective 
annuities.  The  damages  suffered  by  the  estate  of  the  deceased 
would  have  nothing  to  do  with  the  amount  of  recovery.  The 
measure  of  damages  would  be  the  pecuniary  injury  resulting 
from  such  death  to  the  parties  respectively  for  whom  and  for 
whose  benefit  such  action  was  brought.^ 

§  650.    Conclusions— Contributory  Negligence.— In 

conclusion  it  may  be  observed,  that  the  general  principles  of 
the  law  relating  to  mutual  or  contributory  negligence,  are 
applicable  to  actions  for  injuries  resulting  in  death,  so  that  no 
action  can  be  maintained,  where  the  negligence  of  the  party 
injured  or  killed  materially  contributes  to  the  injury  or  death.'" 
But  we  have  already  considered  this  subject  elsewhere.  The 
subject  of  excessive  damages  and  of  setting  aside  verdicts, 
will  be  hereafter  fully  treated. 

8  Blake  v.  The  Midland  R.  Co.,  18  Q.  B.,  93;  S.  C.  83  E.  C.  L.,  110. 

5  Opinion  of  Cole,  J.,  in  Sherman  v.  The  Western  Stage  Co.,  24  la. ,  550; 
Pym  V.  Great  N.  R.  Co.,  supra,  affirming  judgment  of  2  B.  2  B.  &  S.,  759; 
8jur.  N.S.,  819;  31  L.  J.  Q.  B.,  249;  10  W.  R.,  737;  6  L.  T.  R.N.  S., 5-37. 

'°  Willetts  V.  Buffalo,  etc.,  R.  Co.,  14  Barb.,  585;  Penn.,  etc.,  Co..  v.  Ogier, 
85  Pa.  St.,  60;  North  Penn.  R.  Co.  v.  Robinson,  44 Pa.  St.,  175;  Tucker  v. 
Chaplin,  2  C.  &  K.,  730.  Or  where  the  death  occurs  in  consequence  of  the 
negligence  of  a  fellow  servant  while  engaged  in  the  same  employment. 
Hutchinson  v.  York,  etc..  R.  Co.,  5  Exch.,  343;  Wigmore  v.  Jay.,  Id.,  354. 
See,  also,  ante,  Ch.  10,  and  authorities  there  cited.  See,  also,  as  to  servant's 
knowledge  of  defects,  by  which  he  was  injured,  ante,  §  185,  and  authorities 
there  cited. 


KEGLIGEXCE.  51T 


Negligence  a  Tort— Definitions. 


CHAPTER  XXII. 


NEGLIGENCE— GROSS  NEGLIGENCE. 

Section  659.  Negligence  a  Tort— Definitions. 

661.  Law  and  Fact. 

662.  "When  a  Question  for  the  Court. 

663.  The  Question  usually  one  for  the  Jury. 

664.  For    what    Consequences    the   Negligent    "Wrongdoer    is 

Answerable— Negligent  Fires. 

666.  Successive  Negligence  of  Different  Parties. 

667.  Damages  in  case  of  Negligence— Elements  of. 

668.  Illustrations. 

669.  Damages  to  Beal  Property  from  Negligence. 

670.  Personal  Property— Damages. 

671.  Damages  in  Other  Cases. 

§  659.    Negligence  a  Tort— Definitions.— We  have  had 

occasion  already  to  consider  this  subject  incidentally,  in  treat- 
ing of  motives  as  affecting  the  measure  of  damages  in  torts,' 
and  also  in  considering  the  subject  of  contributory  negligence.* 
A  comprehensive  treatment  of  the  subject  would  carry  us 
beyond  the  proper  limit  in  a  work  on  damages,  but  a  brief 
statement  of  some  of  the  general  principles  and  rules  may  be 
proper. 

Negligence,  whereby  injury  results  to  a  party,  generally 
belono-s  to  that  class  of  wrongs  denominated  torts;  and  the 
general  rule  is,  that  for  all  injuries  to  a  person,  resulting  from 

'  See,  ante,  §§  24,  25. 
'  See,  atite,  Ch.  10. 


618  THE  LAW  OF  DAMAGES. 


Law  and  Fact. 


the  negligence  of  another,  and  to  whicli  the  party  injured  has 
not  by  his  own  act  or  negligence  materially  contributed,  the 
party  injured  may  recover  all  such  damages  as  directly  and 
naturally,  or  necessarily  flow  from  the  negligence.'  And,  as 
we  have  already  seen,  for  gross  negligence,  the  wrongdoer 
may  be  liable  not  only  for  the  actual  loss  sustained  thereby, 
but  also  for  exemplary  damages;  as  by  such  conduct  the  law, 
it  has  been  said,  imputes  malice  to  the  wrongdoer."  Whereas, 
if  the  party  injured  contributed  to  produce  the  result,  he  is 
in  pari  delicto,  and  cannot  recover  damages.  Such  is  a  brief 
statement  of  the  general  principles  of  law  in  such  cases."^ 
Frequent  application  of  these  principles  is  made,  not  only 
in  cases  of  injuries  resulting  in  death,  which  we  have  just 
considered,  but  in  other  cases  of  injury  to  the  person  or  prop- 
erty. And  although  we  propose  to  consider  the  principles 
more  particularly  applicable  in  actions  brought  for  injuries 
to  the  person,  we  will  also  endeavor  to  illustrate  the  rules  of 
damages  in  all  cases  of  negligence. 

§  661 .  LaAV  and  Fact.— Negligence  is  said  to  be  a  mixed 
question  of  law  and  tact;  it  is  the  want  of  ordinary  care  and 

3  1  Hill  on  Torts,  115,  et  seq.  "He  must  answer  not  only  for  all  damage 
whicli  a  prudent  man  would  expect  to  result  from  his  fault,  but  also  for  all 
that  a  prudent  man  would  anticipate  as  a  possible  consequence  thereof." 
Shear.  &  Red.  on  Neg.,  §  594.  See,  also,  Bridges  v.  Grand  June.  R.  Co.,  3 
M.  &  W.,  244;  Ellis  v.  Lond.  &  S.  W.  R.  Co.,  2  H.  &  N.,  424;  26  L.  J.  Ex., 
349;  Thompson  v.  N.  W.  R.  Co.,  2  B.  &  S.,  106;  30  L.  J.  Q.  B.,  G7;  2  B.  & 
S.,  119.  We  here  have  the  doctrine  of  extended  liability  applied  in  torts, 
which  we  have  considered  as  applicable  in  assessing  damages  on  the  breach 
of  contracts  in  many  cases,  generally  known  as  the  doctrine  of  Hadley  v. 
Baxendale.  "  A  negligence  is  the  juridical  cause  of  an  injury,  when  it  con- 
sists of  such  an  act  or  omission  on  the  part  of  a  responsible  human  being,  as, 
in  ordinary  natural  sequence,  immediately  results  in  such  injury.  Such  in 
fact  we  may  regard  as  the  meaning  of  the  term  'proximate  cause,'  adopted 
by  Lord  Bacon  in  his  maxims."     Whart.  on  Neg.,  §  73. 

*  St.  Louis,  etc.,  R.  Co.  v.  Todd,  36  lU.,  409.  But  see.  Shear  &.  Read,  on 
Neg.,  §  3,  where  the  proposition,  that  gross  negligence  is  equivalent  to  fraud, 
is  held  to  be  a  misuse  of  terms.  See,  also  Lincoln  v.  Buckmaster,  32  Vt., 
652;  Wilson  v.  Y.  &  M.  R.  Co.,  11  GiU.  &  J.,  58;  Tonawanda  R.  Co.  v.  Man- 
ger, 5  Den.,  255. 


NEGLIGEiTCE.  519 


"When  a  Question  for  the  Court— Question  Usually  one  for  Jury. 

prudence,  aud  always  involves  the  consideration  of  all  the 
circumstances  of  the  particular  case,  in  order  to  properly 
determine  whether  there  is  negligence;  and  ordinary  care  in 
one  case,  may  be  gross  negligence  in  another.  Thus,  conduct 
which  would  constitute  ordinary  care  in  crossing  a  highway  or 
street,  might  be  gross  negligence  in  crossing  a  railroad  track; 
and  riding  with  the  arm  or  hand  out  of  a  stage  coach  or  omni- 
bus, might  be  no  want  of  ordinary  care,  when  the  same  act,. 
in  a  railroad  car,  would  be  negligence  or  even  gross  negligence. 

§  662.  When  a  Question  for  the  Court. — Where  there 
is  no  contradictory  evidence,  or  the  facts  are  admitted,  the  ques- 
tion of  negligence  is  one  of  law,  and  the  court  may  pass  upon 
it  and  order  such  a  verdict  for  the  plaintiff  or  the  defendant 
as  the  case  may  warrant." 

§  663.    The  Question  Usually  one  for  the  Jury.— But 

the  question  is  usually  one  of  fact  to  be  settled  by  the  jury, 
under  the  instructions  of  the  court.*  Thus,  an  error  in  judg- 
ment, in  stepping  upon  a  railroad  track  in  an  emergency,  if 
the  proof  is  not  clear  as  to  the  elements  of  time  and  space  on 
which  such  judgment  was  based,  should  not  be  held  negligence 
as  a  matter  of  law;  but  the  question  should  be  left  to  a  jury.^ 
And  to  justify  a  non-suit  on  the  ground  of  contributory  negli- 
gence, the  evidence  against  the  plaintiff  should  be  so  clear  as 
to  leave  no  room  to  doubt;  and  all  material  facts  must  be  con- 
ceded or  established  beyond  controversy.' 

5l  HUl  on  Torts.  116,  117. 

6Noms  V.  Litchfield,  35  N.  H.,  277;  Spafford  v.  Harlow,  3  Allen,  179; 
Buel  V.  Chapin,  99  Mass.,  594;  Reynold  v.  Haurahan,  100  Mass.,  313;  South- 
ern R.  Co.  V.  Kendrick,  40  Miss.,  374. 

7  Barnhard  v.  Rensselaer  &  Saratoga  R.  Co.,  1  Abb.,  131. 

8  Johnson  V.  Bruner,  61  Pa.  St.,  58  (1868);  Quick  v.  Holt,  99  Mass.,  164 
(1868);  Klunayde  v.  Pacific  R.  Co..  45  Mo.,  255  (1870);  Kan-  v.  Parks,  40 
Cal.,  188  (1870);  Judd  v.  Fargo,  107  Mass.,  264;  Baltimore,  etc.,  R.  Co.  v. 
State,  36  Md.,  366  (1872);  Barton  v.  St.  Louis,  etc.,  R.  Co.,  52  Mo.,  253; 
Penndrill  v.  Second  Av.  R.  Co.,  34  N.  Y.,  481;  Rudolph  v.  Fuchs,  44  How. 
Pr.,  55;  Cook  V.  N.  Y.  Cent.  R.  Co.,  1  Abb.,  432. 


520  THE  LAW  OF  DAMAGES. 


Question  Usually  one  for  Jury. 


Thus,  where  a  man  leaves  a  liorse  unfastened  upon  the  high- 
way, it  is  not  necessarily  an  act  of  negligence.  Whether  it  is 
or  not,  must  be  determined  by  considering  the  temper  of  the 
horse,  and  the  particular  circumstances  under  which  he  is  left.' 
So,  where  in  the  proper  discharge  of  his  duty,  and  in  the  exer- 
cise of  ordinary  prudence,  a  person  places  himself  where  his 
life  and  personal  safety  are  imperilled,  that  act,  will  not  neces- 
sarily constitute  negligence  on  his  part.'" 

But,  where  the  defendant  dug  a  ditch  across  a  public  high- 
way and  allowed  it  to  remain  open  at  night,  with  no  provision 
for  warning  or  protecting  travelers,  in  an  action  for  an  injury 
caused  thereby,  this  was  held  negligence  as  a  matter  of  law, 
and  a  refusal  to  submit  the  question  to  the  jury  was  held  to  be 
no  error."  And,  under  the  provisions  of  a  statute  requiring 
the  tumbling  rod  of  threshing  machines  to  be  boxed,  and  pro- 
viding that  the  persons  owning  or  running  such  machine  shall 
be  liable  in  damages  to  any  person  injured  by  reason  of  a 
neglect  to  do  so;  it  was  held,  in  an  action  to  recover  damages 
for  an  injury  received  in  consequence  of  a  failure  to  comply 
with  the  statute,  that  the  failure  to  box  was,^^/'  se,  negligence 
on  the  part  of  the  person  running  the  machine;  but  that  the 
statute  left  the  rule,  respecting  contributory  negligence  on  the 
part  of  the  injured  party,  the  same  as  in  other  cases.'" 

To  sustain  an  action  for  negligence  it  is  not  essential  that 
the  negligence  should  be  willful.  The  only  effect  of  proof  of 
willfulness,  as  we  have  seen,  it  to  give  more  liberal  or  even 
vindictive  damages. 

9  Greg^s  V.  Flieckstien,  14  Minn.,  81;  Albert  v.  Bleeker  Street,  etc.,  R.  Co., 
2Daly(N.  Y.),  389. 

'°  Carroll  v.  Mennisota  Val.  R.  Co.,  14  Minn.,  57. 

"  Sexton  V.  Zett,  44  N.  Y.,  430  (1871).  See,  also,  Jetter  v.  New  York  & 
Hud.  R.  Co.,  2  Abb.  (N.  Y.),  4-58. 

'^  Raymond  v.  Hindman,  32  la.,  146  (1871).  See,  also.  Chap.  10,  ante,  and 
Pickens  v.  Decker,  21  Ohio  St..  212,  where  it  was  held  that  an  attempt  to 
lead  two  skittish  horses  throug-h  the  streets,  attached  to  a  buggy,  by  means 
merely  of  a  rope  fastened  around  the  neck  of  one  of  them,  and  an  injury 
thereby  occurred,  was  negligence  per  se. 


NEGLIGENCE.  521 


For  what  Consequences  Negligent  "Wrongdoer  is  Answerable,  etc. 


§  064.  For  what  Consequences  the  Negligent  Wrong- 
doer is  Answerable— Negligent  Fires.— The  general  rule 
is,  that  a  person  is  answerable  for  the  consequences  of  his 
negligence,  only  so  far  as  they  are  the  natural  and  aproxi- 
inate  results  of  the  injury,  and  might  therefore  have  been 
anticipated  by  ordinary  forecast;  and  not  for  those  consequences 
arising  from  a  conjunction  of  his  fault,  with  circumstances  of 
an  extraordinary  nature."  The  damages  must  be  both  the 
natural  and  proximate  consequence  of  the  act  complained  of, 
and  the  direct  and  not  remote  result  of  the  defendant's  wrong. 
And  where  the  intervention  of  the  independant  act  of  a  third 
person  between  the  negligence  of  the  defendant  complained  of 
and  the  injury  sustained,  is  the  immediate  cause  of  injury, 
the  plaintiff  cannot  recover." 

We  here  meet  the  difficulty,  in  drawing  a  line  of  limitation 
of  liability,  which  we  referred  to  in  the  introductory  chapter 
as  existing  generally  in  actions  for  torts.  The  various  doctrines 
of  the  metaphysicians,  on  the  subject  of  causation,  have  been 
examined  and  criticised  in  attempting  to  frame  some  rule  of 
universal  application,  in  determining  the  juridical  cause  of 
damages  resulting  from  negligence.'" 

'3  Fairbanks  v.  Kerr,  70  Pa.  St.,  86;  Ryan  v.  N.  Y.  Cent.  R.  Co.,  35  N.  Y., 
210.  The  measure  of  damages  is  the  direct  pecmiiary  loss.  Walrath  v. 
Redfield,  11  Barb.,  368;  Butler  v.  Kent,  19  Johns.,  223. 

'4  Cuff  V.  Newark,  etc.,  R.  Co.,  35  N.  J.  L.,  17.  Whart.  on  Neg.,  §  134, 
et  seq. 

n  The  English  metaphysicianand  philosopher,  John  Stuart  MiU,  in  discussing 
the  subject  of  causation,  remarks:  "For  every  event  there  exists  some  «M)m- 
bination  of  objects  or  events,  some  given  concurrence  of  circumstances, 
positive  and  negative,  the  occurrence  of  which  wiU  always  be  followed  by 
that  phenomenon.  We  may  not  have  found  out  what  this  concurrence  of 
circumstances  may  be;  but  we  never  doubt  that  there  is  such  a  one  and  that 
it  never  occurs  without  having  the  phenomenon  in  question  as  its  effect  or 
consequence.  *  *  *  it  is  seldom,  if  ever,  between  a  consequent  and 
one  single  antecedent  that  this  invariable  sequence  subsists.  It  is  usually 
between  a  consequent  and  the  sum  of  several  antecedents;  the  concur- 
rence of  all  of  them  being  requisite  to  produce,  that  is,  to  be  certain  of 
being  followed  by,  the  consequent.    In  such  cases  it  is  very  common  to 


■J 
522  THE  LAW  OF  DAMAGES. 


For  what  Consequences  Negligent  Wrongdoer  is  Answerable,  etc. 


Suppose  through  the  negligence  of  a  raih'oad  company,  the 
house  of  A.,  near  a  raih-oad,  is  set  on  fire  without  his  fault, 
by  sparks  and  cinders  escaping  from  the  locomotive  used  by  the 
company,  and  is  consumed,  and  that  the  adjoining  buildings 

single  out  one  only  of  the  antecedents  under  the  denomination  of  cause, 
calling  the  others  merely  conditions.  Thus,  if  a  man  eats  of  a  particular 
dish  and  dies  in  consequence,  that  is,  would  not  have  died  if  he  had  not 
eaten  of  it,  people  would  be  apt  to  say  that  eating  of  that  dish  was  the 
cause  of  his  death.  There  needs  not,  however,  be  any  invariable  connection 
between  the  eating  of  the  dish  and  death;  but  there  certainly  is,  among  the 
circumstances  which  took  place,  some  combination  or  other  upon  which  death 
is  invariahhj  consequent;  as  for  instance,  the  act  of  eating  of  the  dish  com- 
bined with  a  particular  bodily  constitution,  a  particular  state  of  present 
health,  and,  perhaps  even  a  particular  state  of  the  atmosphere;  the  whole 
of  which  circumstances,  perhaps,  constituted  in  tliis  particular  case  the  con- 
ditions of  the  phenomenon,  or,  in  other  words,  the  set  of  antecedents  which 
determined  it,  and  but  for  which  it  would  not  have  happened.  The  real  cause 
is  the  whole  of  these  antecedents;  and  we  have,  philosophically  speaking, 
no  right  to  give  the  name  of  cause  to  one  of  them,  exclusively  of  the  others." 
1  Mill's  Logic  (2  Lond.  ed.).  398. 

The  theory  advanced  by  Mr.  Mill,  has  recently  been  criticised  and  pro- 
nounced unsound,  by  Mr.  Wharton  in  an  article  published  in  "The  Southern 
Law  Review"  (Jan.  1876).  He  proceeds  to  discuss  the  question  as  follows: 
"Is  a  person  liable  for  damages  of  which,  unintentionally,  he  is  one  of  the 
occasions,  when,  between  the  occurrence  of  the  occasion  and  the  damage, 
intervenes  the  negligence  or  malice  of  third  parties  by  which  the  damage  is 
immediately  caused  ?  The  question,  it  will  at  once  be  seen,  opens  to  us  the  whole 
doctrine  of  causation.  "What  is  a  juridical  cause?  Is  there  a  distinction 
between  a  "condition"  and  a  "cause?"  If  so,  and  should  it  appear  that  this 
distinction  is  juridically  fundamental,  how  does  it  bear  on  the  issue  before  us? 
This  question  has  been  much  agitated  in  other  countries  and  in  other  gener- 
ations than  our  own.  Perhaps  I  may  best  illustrate  it,  at  least  in  its  histor- 
ical relations,  by  adverting  to  a  famous  controversy  now  a  century  old. 

On  the  27th  of  September,  1774,  died  at  the  Vatican,  Pope  Clement  XV., 
not  many  months  after  the  issue  of  the  bull  Dominus  ac  Redemptor  noster, 
suppressing  the  order  of  the  Jesuits.  The  cause  of  his  death  has  been  the 
subject  of  a  contention  in  which  the  doctrines  we  have  just  noticed  are  incident- 
ally discussed  with  singular  acuteness  and  persistency.  On  the  one  side,  we 
are  pointed  to  the  advanced  age  of  Ganganelli,  the  secular  name  by  which 
Clement  XV.  is  best  known;  his  habits  of  gastronomic  indulgence;  the  sim- 
ilarity of  his  disease  with  those  usually  produced  by  over-eating;  and  in 
particular  to  a  suspiciously  excessive  dinner  he  swallowed  shortly  before  his 
final  attack.  On  the  other  side,  it  is  argued  that  while  the  dyspepsia  which 
he  suffered  was  the  occasion,  it  was  not  the  cause  of  his  death;  that  his  con- 


NEGLIGENCE.  523 


For  what  Consequences  Negligent  "Wrongdoer  is  Answerable,  etc. 

of  B.,  C,  and  D.  are  thereby,  without  their  fault,  successively 
consumed;  is  the  company  liable  to  B.,  C,  and  D.,  respect- 
ively? 

On  this  question  the  authorities  seem  very  conflicting,  as 

stitution  was  such  that  he  could  have  withstood  this  particular  disease  for 
years  without  succumbing;  that  the  disease  was  accelerated  by  a  subtle  poi- 
son administered  to  him.  by  which  its  symptoms  were  aggravated  and  made 
fatal,  and  that  the  traces  of  this  poison  were  detected  in  his  remains.  But  even 
supposing  that  the  latter  statements  are  correct,  are  we  to  speak  of  such  poi- 
son, supposing  it  to  have  been  negligently  given,  or  supposing  it  to  be  a  part 
of  remedies  honestly  prescribed  by  Ganganelli's  physicians,  as  causing  his 
death?  Was  not  that  death  caused  equally  by  other  antecedents  in  his 
eventful  life  ?  As  threads  in  this  cord  of  causation,  are  we  not  to  enumerate 
hereditaiy  infirmities  which  we  can  well  suppose  him  to  have  received  from 
his  parents,  and  the  enervating  influence  of  a  secluded  ecclesiasticism,  and 
the  anxiety  of  the  papacy  at  an  era  so  critical,  and  that  innumerable  series 
of  agencies  which  had  united,  for  several  generations,  in  bruiging  Christen- 
dom face  to  face  with  the  revolutions  which  were  then  about  to  convulse  the 
world '? 

I  have  introduced  this  illustration  because  it  gives,  in  a  concrete  shape,  a 
case  supposed  by  Mr.  Mill,  when  advancing  the  theory  of  causation,  which  is 
the  basis  of  the  adjudications  which  I  here  contest.        *        *        * 

The  first  and  more  technical  objection  to  this  theory  is,  that  it  is  logically 
defective  in  making  everj^thing  the  cauie  of  everything  else.  Thus,  in  the 
case  of  Ganganelli,  there  is  not  an  event  in  prior  or  contemporaneous  history 
of  which  we  can  safely  say,  that  in  no  way  it  entered  into  the  combination  of 
occun-ences  on  which  his  death  was  consequent.  Thus,  to  begin  with  one  of 
the  most  obvious;  it  is  clear  that  if  his  father,  an  accomplished  physician  of 
Arcangelo,  possessed  of  considerable  ecclesiastical  influence,  had  not  lived, 
or  had  not  lived  at  Arcangelo,  or  had  not  possessed  at  Arcangelo  the  influ- 
ence just  noticed,  his  son  either  would  not  have  Hved  at  all,  or  would  not 
have  been  educated  at  Arcangelo  under  circumstances  so  favorable  to  his 
subsequent  success,  or  w^ould  not  have  obtained  those  early  ecclesiastical 
appointments  which  were  the  stepping  stones  to  the  papacy.  So  we  have  to 
suppose  a  line  of  ancestors  from  his  father  back,  a  change  as  to  the  con- 
ditions of  either  of  whom  would  have  prevented,  if  not  the  existence,  at  least 
the  ecclesiastical  education  and  promotion  of  the  pontifi".  But  this  is  not 
aU.  The  buU  Dominus  ac  Redemptor  noster,  to  take  up  a  single  line  of  en- 
quiry, was  one  of  the  antecedents  of  the  death  ;  but  what  were  the  antece- 
dents of  the  buU  Dominus  ac  Redemptor  noster  ?  When  we  look  even  at 
those  antecedents  alone  by  which  that  famous  bull  was  quaHfied.  our  field 
of  observation  expands  until  not  only  all  the  events  of  contemporaneous 
Christendom  are  introduced,  but  all  prior  events  by  which  Christianity  was 
estabhshed  or  modified.    What  immediately  produced  the  bull,  Dominus  ac 


524  THE  LAW  OF  DAMAGES. 

For  what  Consequences  Negligent  Wrongdoer  is  Answerable,  etc. 

we  have  had  occasion  heretofore  to  notice.  On  the  one  side 
it  is  chiimed  that  the  company  is  not  liable.  Thus,  it  has  been 
held,  that  where  through  the  defective  condition  of  a  loco- 

Redemptor  noster  ?  As  we  search  for  its  immediate  antecedents,  we  notice 
Joseph  II.  visiting  Rome  in  pei'son,  in  order,  under  motives  of  philosophical 
liberahsm,  to  obtain  the  election  of  an  anti- Jesuit  pope,  and  then  vehement- 
ly urging  on  Ganganelli,  as  the  pope-elect,  decisive  anti- Jesuit  action;  and 
with  Joseph  II.  we  observe  the  Spanish  and  French  Bourbons,  under  the  in- 
fluence of  court  intrigues,  operating  to  promote  the  same  object ;  and  with 
them  co-operates  Gallicanism,  jealous  of  whatever  conflicts  with  the  prerog- 
atives of  a  national  episcopate,  and  Jansenism  not  merely  instinct  with 
retributive  vengeance  on  its  old  adversary,  but  implacably  hostile  to  what- 
ever militated  against  the  Augustinian  doctrme  of  grace.  But  what  were 
the  antecedents  of  Joseph  II.,  and  of  French  and  Spanish  Bourbonism,  then 
in  their  corrupt  dechne,  and  of  Jansenism  and  of  Jesuitism  itself?  Must 
we  not,  on  this  view,  declare  of  the  death  of  Ganganelli,  as  was  declared  by 
Fichte  of  the  grain  of  sand,  that  he  noticed  on  a  shell  on  the  sea  beach, 
that  the  laws  of  the  whole  universe  must  be  reversed  in  order  to  place  that 
grain  of  sand  elsewhere  ?  (Fichte.,  die  Bestimmung  des  Menschen,  Werke 
ii.,  178;  cited  by  Mansell,  Aids  to  Faith,  p.  26.)  May  we  not  even  ask,  with 
Fichte,  whom  j\Iill  in  this  respect  follows,  whether,  in  order  to  carry  this 
grain  of  sand  a  few  yards  further,  some  one  particular  yet  necessaiy  ancestor 
of  ours  may  not  have  perished  from  hunger,  or  cold,  or  heat ;  and  thus  all 
that  his  descendants  might  do  or  hope  to  do,  have  been  hindered  so  that 
a  grain  of  sand  might  lie  in  a  different  place  ?  It  is  true  that  the  reply  at 
once  arises  that  as  a  child's  hand  could  have  moved  this  grain  of  sand  from 
the  beach  to  the  shell,  so  an  assassin's  stealthy  purpose  could  have  inter- 
rupted ordinary  physical  laws,  and  in  spite  of  all  his  antecedents,  caused 
the  pontiff"  's  death.  But  this,  according  to  the  philosophy  we  here  examine, 
would  not  change  the  fact  that  the  assassin  with  his  poison  is  only  a  co-or- 
dinate figure  in  the  interminable  range  of  antecedents  by  which  the  death  in 
question  is  equally  caused.  This  death,  in  fact  on  this  theory,  forms  part  of 
a  combination  of  events,  each  of  wliich  is  dependent  on  the  other,  and  neither 
of  which  can  exist  without  the  other.  In  this  respect  it  is  again,  on  this 
showing,  like  Fichte's  grain  of  sand,  which  is  put  where  it  is  by  the  equiU- 
brium  of  the  universe,  and  yet  from  which  the  equilibrium  of  the  universe 
results.  The  localization  of  the  ancestor,  on  Fichte's  hypothesis,  is  as  es- 
sential to  the  existence  of  the  grain  of  sand,  as  the  localization  of  the  grain 
of  sand  to  the  existence  of  the  ancestor.  Hence,  we  have  the  grain  of  sand 
and  the  ancestor  part  causes  of  each  other;  and  each,  therefore,  is  part  cause 
of  itself.  Each  event,  in  other  words,  according  to  such  a  theory  of  causa- 
tion, becomes  part  cause  of  its  own  causes,  and  contributes  to  create  that 
by  which  it  was  created.  We  are  baffled,  therefore,  when  we  seek  for  causa- 
tion on  this  hypothesis,  either  by  being  turned  back  to  antecedents  which,  as 


NEGLIGENCE.  625 


For  what  Consequences  Negligent  Wrongdoer  is  Answerable,  etc. 

motive  of  the  defendant,  a  railroad  company,  a  quantity  of 
wood  was  ignited  in  one  of  its  sheds,  and  the  shed  was  con- 
sumed, and  the  fire  therefrom  set  on  fire  and  consumed   the 

unconditioned  by  time  or  space,  are  beyond  our  cognition;  or  -which  are  each 
other's  causes,  which  is  absurd. 

I  said  there  was  a  second  reason  for  my  taking'  Ganganelli's  death  to  iUus- 
trate  Mr.  Mill's  notions  of  causality.  The  first  reason  is,  that  Mr.  Mill  sug- 
gests this  death  himself.  The  second  is,  that  it  enables  me  to  bring  to  bear 
on  this  topic  the  Roman  law,  which  was  that,  to  pursue  the  analogy  in  the 
way  a  similar  theme  is  treated  by  Robert  Browning,  by  the  forms  of  which 
the  pontiff's  death  was  actually  investigated.  But  there  are  other  grounds 
for  appealing  to  the  Roman  law  to  aid  in  the  present  investigation.  The 
Roman  jurists  were  not  only  great  lawyers,  but  they  were  familiar  with  the 
Epicurean  scheme  of  causation  which  Mr.  Mill  has  lately  reproduced  Elo- 
quently is  this  hypothesis  discussed  by  Cicero;  and  two,  at  least,  among  the 
Justinian  jurists,  are  referred  to  by  Cicero  as  masters  in  the  science  of  juris- 
prudence in  its  wide  sense.  But  we  have  not  to  content  ourselves  with  mere 
inferential  proof  such  as  this.  Ulpian  is  the  most  copious  writer  cited  in  the 
digest;  and  at  the  very  beginning  Ulpian  takes  pains  to  show  us  that  Greek 
pliilosophy  has  been  cautiously  weighed  by  him,  in  the  reaching  of  judicial 
results.  If,  therefore,  we  are  to  look  for  an  adequate  tribunal  to  determine 
what  is  causality,  as  a  practical  question,  and  in  the  only  shape  in  which  the 
enqu'ry  can  become  useful  to  us,  we  may  find  this  tribunal  in  a  court  gov- 
erned by  the  principles  of  the  Roman  law. 

'What  killed  Ganganelli?'  We  can  conceive  such  an  inquiiy  as  this 
to  be  instituted  before  a  Roman  court  of  initiatorj-  process,  a  court  exercis- 
ing functions  similar  to  those  of  one  of  our  own  committing  magistrates. 
'What  killed  Ganganelli?'  Tn  the  days  of  Ganganelli,  as  well  as  in  the 
days  of  Justinian,  and  in  our  own  days,  epicureanism  and  stoicism  each 
had  their  votaries;  and  it  is  not  diflScult  to  imagine  epicurean  pliilosophers, 
who  anticipated  Mr.  Mill  in  one  part  of  his  speculations,  and  stoical  philoso- 
phers, who  anticipated  him  in  another,  as  among  the  witnesses  of  the 
pontiff's  death.  An  epicurean  cook,  or  chief  of  the  kitchen,  would  not 
have  been  an  unnatural  inmate  of  the  pontifical  household;  and  stoical 
physicians  were  not  likely,  in  those  days,  to  have  been  unknown  in  such  a 
court.  We  can,  therefore,  readily  conceive  of  an  examination  such  as  the 
following: 

Judge — What,  to  your  knowledge,  was  the  cause  of  the  Pope's  death? 

Epicurean  Cook — The  'sum  of  all  his  antecedents;'  this  is  the  only  kind 
of  causation  which  philosophy  can  possibly  .know. 

Judge — (Supposing  him  not  to  lose  his  temper  at  the  answer.)  But  you 
presided  over  the  Pope's  kitchen  the  day  of  his  death;  was  there  anything 
that  went  to  him  different  from  his  usual  diet?  Anj^hing  to  cause  indi- 
gestion. 

Witness — Everything  caused  everything.     Indigestion,  if  it  existed,  can 


526  THE  LAW  OF  DAMAGES. 

For  what  Consequences  Negligent  Wrongdoer  is  Answerable,  etc. 

house  of  the  plaintiff,  abont  one  liundred  und  thirty  foot  dis- 
tant from  the  shed,  the  phaintijEf  coukl  not  recover  of  tlie  com- 

not  be  said  to  be  caused  by  the  Pope  eating  a  particular  dish.  It  was 
caused,  as  the  philosophers  tell  us,  by  the  dish,  and  the  Pope's  own  consti- 
tution, and  the  constitutions  of  his  ancestors,  and  the  particular  state  of  the 
atmosphere  by  which  he  was  surrounded,  and  the  particular  states  of  prior 
atmospheres  by  which  this  particular  subsequent  atmosphere  was  produced, 
and 

Judge — But  stop.  You  are  here  to  answer  a  particular  question,  and  that 
question  you  must  answer  now,  or  go  to  prison  until  you  do.  You  and  I 
have  notliingr  to  do  with  these  events  you  call  the  '  sum  of  all  the  antece- 
dents.' You  saw  the  food  sent  to  the  Pope.  Was  there  anything  in  it  by 
which  his  death  might  have  been  caused? 

Or  suppose  the  question  to  be  put  to  the  surgeons  who  examined  the  Pope's 
remains,  What  caused  his  death  ?  And  suppose  a  similar  answer  to  have 
been  made.     What  other  reply  can  we  conceive  of  than  this : 

*  You  are  bound  to  tell  which  of  these  innumerable  antecedents,  of  which 
you  speak,  was  the  cause;  the  only  cause  which  public  justice  can  deal  with, 
and  which  public  safety  demands.' 

Nor  is  the  reasoning  of  our  Anglo-American  courts  different  in  result, 
though  it  is  couched  in  less  philosophical  terms  than  those  by  which,  as  we 
will  presently  see,  the  conclusions  of  the  Roman  jurists  are  defended.  Thus, 
in  Stokes'  case,  a  case  where  every  possible  defense  that  ingenuity  could 
devise  and  audacity  propose,  was  offered,  judge  after  judge,  herein  follow- 
ing a  uniform  line  of  unassailable  adjudications,  scouted  at  the  idea  that 
risk's  "constitution  "  or  other  "antecedents  ''  had  anything  whatever  to  do 
with  the  case,  except  so  far  as  those  antecedents  tended  to  show  Stokes  that 
he  was  about  to  be  attacked  by  Fisk;  and  it  was  even  ruled  that  so  close  and 
immediate  an  antecedent  as  the  probing  of  the  wound  by  the  surgeons  was 
irrelevant,  unless  it  should  be  proved  that  the  probing  itself  was  such  as  to 
have  produced,  as  a  regular  and  ordinary  inference,  the  death  of  Fisk.  So 
in  York's  case,  famous  in  the  annals  of  Massachusetts  jurisprudence,  and  in 
Flanagan's  case  (Flanagan  v.  People,  52  N.  Y.  699.),  reported  in  the  fifty- 
second  volume  of  the  reports  of  the  New  York  Court  of  Appeals,  the 
highest  courts  in  Massachusetts  and  New  York,  following  herein  the  lead- 
ings of  all  other  Anglo- American  courts  who  have  discussed  the  question, 
dismiss  with  summary  curtness  the  suggestion  that  the  defendant  was  in  a 
condition  of  mind  to  be  necessitated  by  circumstances  to  do  a  particular 
thing.  Sane  or  insane,  there  is  no  one,  it  is  held,  who  is  necessitated  to 
any  act  by  '  the  sum  of  all  his  aijtecedents.' 

Is  tiiis  barbarous  ?  If  it  was  the  English  common  law  alone  which  rules 
this, — a  law  so  disdainful  of  metaphysics,  and  which  metaphysics  so  much 
disdains, — the  rebuke  of  barbarism  might  be  treated  as  a  natural  retort. 
But  not  only  the  English,  but  the  Roman  law  thus  speaks;  and  the  Roman 
law,  in  the  person  of  some  of  its  most  eminent  modern  jurists,  defends  this 


NEGLIGENCE.  527 


For  what  Consequences  Negligent  "Wrongdoer  is  Answerable,  etc. 


pany  for  the  loss  he  had  thereby  sustained."  So  where  a  rail- 
road company  through  its  negligence,  set  fire  to  the  house  of 
another,  and  the  fire  therefrom  was  communicated  to  the  house 
of  a  third  party  which  was  consumed  with  its  contents;  it 

position  by  reasoning  which  may  be  thus  condensed:  (Feuerbach,  Pein- 
liches  Recht;  II.  Berner,  Stralrecht,  §§  6-22.)  An  offense  is  committed,  or 
an  injury  done;  it  is  essential  for  us,  when  we  come  to  punish  the  offense  or 
redress  the  injury,  to  distinguish  between  those  of  its  conditions  which  are 
mechanical  and  irresponsible,  and  those  which  are  moral  and  responsible." 

See,  also,  a  discussion  of  the  subject  in  Appendix,  Whart.  on  Neg. 

'  Ryan  v.  New  York  Cent.  R.  Co.,  35  N.  Y.,  210  (18G6).  Hunt.  J.,  in  this 
case,  after  referring  to  several  authorities  where  it  was  held  that  the  losses 
were  the  natural  and  necessary  consequences,  and  result  ordinarily  to  be  antic- 
ipated, and  hence  made  the  negligent  wrongdoer  liable,  and  also  authorities 
where  the  loss  was  held  too  remote,  remarks:  "  If  an  engineer  upon  a  steam- 
boat or  locomotive,  in  passing  the  house  of  A.,  so  carelessly  manages  its 
machinery  that  coals  and  sparks  from  its  fires  fall  upon,  and  consume  the 
house  of  A.,  the  railroad  company  or  the  steamboat  proprietors  are  liable  to 
pay  the  value  of  the  property  thus  destroyed.  (Field  v.  N.  Y.  Central  R.  R., 
32  N.  Y.,  339.)  Thus  far  the  law  is  settled  and  the  principle  is  apparent.  If 
however,  the  fire  communicates  from  the  house  of  A.,  to  that  of  B.,  and  that 
is  destroyed,  is  the  negligent  party  liable  for  his  loss  ?  And  if  it  spreads 
thence  to  the  house  of  C,  and  thence  to  the  house  of  D.,  and  thence  consec- 
utively tlirough  the  other  houses,  until  it  reaches  and  consumes  the  house  of 
Z.,  is  the  party  liable  to  pay  the  damages  sustained  by  these  twenty-four 
sufferers '?  The  counsel  for  the  plaintiff  does  not  distinctly  claim  this,  and 
I  think  it  would  not  be  seriously  insisted  that  the  sufferers  could  recover  in 
such  case.  Where  then  is  the  prmciple  upon  which  A.  recovers,  and  Z.  fads? 
It  has  been  suggested  that  an  important  element  exists  in  the  difference 
between  an  intentional  fixing,  and  a  negligent  firing  merely;  that  when  a 
party  designedly  fires  his  own  house  or  his  own  fallow  land,  not  intending 
however,  to  do  any  injury  to  his  neighbor,  but  a  damage  actually  results  ,that 
he  may  be  liable  for  more  extended  damages  than  where  the  fire  originated 
in  accident  orneghgence.  It  is  true  that  the  most  of  the  cases  where  the 
Habihty  was  held  to  exist,  were  cases  of  intentional  firing.  *  *  *  With- 
out deciding  upon  the  importance  of  this  principle,  I  prefer  to  place  my  opin- 
ion upon  the  ground  that,  in  the  one  case,  to- wit:  the  destruction  of  the 
building  upon  which  the  sparks  were  thrown  by  the  negligent  act  of  the 
party  sought  to  be  charged,  the  result  was  to  have  been  anticipated  the 
moment  the  fire  was  communicated  to  the  building;  that  its  destruction  was 
the  ordinary  and  natural  result  of  its  being  fired.  In  the  second,  third  or 
twenty-fourth  case,  as  supposed,  the  destruction  of  the  building  was  not  a 
natural  and  expected  result  of  the  first  firing.  That  a  building  upon  which 
sparks  and  cinders  fall  should  be  destroyed  or  seriously  injured  must  be 


528  THE  LAW  OF  DAMAGES. 

For  what  Consequences  Negligent  Wrongdoer  is  Answerable,  etc. 

was  held  that  the  railroad  company  was  not  liable  for  the  loss  of 
the  last  building  or  its  contents  thus  destroyed,  and  that  a 
party  guilty  of  an  act  of  negligence  by  which  loss  results,  is 
not  liable  for  all  the  remote  consequences  which  ma}-  ensue 
therefrom/ 

On  the  other  side  it  has  been  held,  in  several  recent  and  well 
considered  cases,  that  such  losses  may  be  recovered ;  that  such 
damages  are  not  too  remote  from  the  negligent  cause;  that  the 
causal  connection  between  the  negligence  and  the  losses  of  the 
respective  parties  is  complete,  and  that  the  question  of  negli- 
gence of  the  company  and  of  the  other  parties  should  be  sub- 
mitted to  the  jury  under  all  the  circumstances  of  tlie  case. 
Thus,  in  Illinois,  where  it  appeared  that  a  locomotive,  belong- 
ing to  the  defendant,  in  passing  through  a  village  with  a  train 
of  cars,  threw  out  great  quantities  of  unusually  large  cinders 

expected,  but  that  the  fire  should  spread  and  other  buildings  be  consumed, 
is  not  a  necessary  or  an  usual  result.  *  *  *  To  sustain  a  claim  like  the 
present,  and  to  follow  the  same  to  its  legitimate  consequences,  would  subject 
to  a  liability  against  which  no  prudence  could  guard,  and  to  meet  which  no 
private  fortune  would  be  adequate.  Nearly  all  fires  are  caused  by  negligence 
in  its  extended  sense.  In  a  country  where  wood,  coal,  gas  and  oils  are  uni- 
versally used,  where  men  are  crowded  into  cities  and  villages,  where  servants 
are  employed,  and  where  children  find  their  homes  in  aU  houses,  it  is  impos- 
sible that  the  most  vigilant  prudence  should  guard  against  the  occurrence  of 
accidental  or  negligent  fires.  *  *  *  ^g  hold  that  the  owner  must  not 
only  meet  his  owm  loss  by  fire,  but  that  he  must  guarantee  the  security  of 
his  neighbors  on  both  sides,  and  to  an  unlimited  extent,  would  be  to  create 
a  liability  which  would  be  the  destruction  of  all  civilized  society.  No  com- 
munity could  long  exist  under  the  operation  of  such  a  principle.  In  a  com- 
mercial country,  each  man,  to  some  extent,  runs  the  hazard  of  his  neighbor's 
conduct,  and  each,  by  insurance  against  such  hazards,  is  enabled  to  obtain  a 
reasonable  security  against  loss.  To  neglect  such  precaution,  and  to  call 
upon  his  neighbor,  on  whose  premises  a  fire  originated,  to  indemnify  him 
instead,  would  be  to  award  a  punishment  quite  beyond  the  offense  committed. 
It  is  to  be  considered,  also,  that  if  the  negligent  party  is  liable  to  the  owner 
of  a  remote  building  thus  consumed,  he  would  also  be  liable  to  the  insurance 
companies  who  should  pay  losses  to  such  remote  owners.  The  principle  of 
subrogation  would  entitle  the  companies  to  the  benefit  of  every  claim  held 
by  the  party  to  whom  a  loss  should  be  paid."  See,  ante,  §  50,  et  seq,  and 
notes. 
*  The  Pa.  R.  Co.  v.  Ken-,  62  Pa.  St.,  353  (1869). 


KEGLIGEN"CE.  529 


For  what  Consequences  Negligent  Wrongdoer  is  Answerable,  etc. 

which  set  on  fire  a  warehouse  near  the  track,  the  heat  and 
flames  from  which  ignited  a  building  of  the  plaintifi'  which 
was  situated  about  two  hundred  and  fifty  feet  from  the  ware- 
house, and  which  was  thereby  destroyed;  it  was  held,  that  the 
company  was  not  exonerated  from  liability  merely  because  the 
plaintiff's  house  was  not  immediately  ignited  by  the  cinders 
thrown  from  the  locomotive,  but  by  the  burning  of  the  ware- 
house; that  it  was  not  a  conclusion  of  law,  that  the  fire  sent 
forth  by  the  locomotive  should  be  considered  as  the  remote 
and  not  the  proximate  cause  of  injury  to  the  plaintiff,  but  a 
question  of  fact  to  be  determined  by  the  jury  under  the 
instructions  of  the  court.^ 

s  Fent  V.  Toledo,  P.  &  W.  R.  Co.,  59  111..  .349  (1871).  This  case  foUowed 
the  case  of  Ryan  v.  N".  Y.  Cen.  R.  Co.,  and  Pa.  R.  Co.  v.  Kerr,  supra.  The 
question  involved  was  the  same  in  each,  and  they  were  fully  considered  by 
the  court  in  the  Illinois  case.  Lawrence,  C.  J.,  in  the  opinion  in  that  case, 
remarks:  "With  the  exception  of  two  recent  cases  decided  in  this  country, 
it  cannot  be  denied  that  the  great  current  of  English  and  American  authori- 
ties would  bring  the  defendant  in  this  case  within  the  category  of  proximate 
causes.  *  *  *  From  the  oft-quoted  squib  case  of  Scott  v.  Shephard,  2 
W.  Black.,  892,  down  to  our  own  day,  the  EngUsh  reports  abound  with 
instances  in  which  causes  more  remote  than  the  cause  in  this  case  have  been 
held  sufficiently  dii-ect  and  proximate  to  make  a  ground  of  damages.  As 
illustrative  of  this  we  content  ourselves  with  citing  Illidge  v.  Goodwin,  24  E. 
C.  L.,  272;  Lynch  v.Nurdin,41  E.  C.  L.,  422;  Ridgely  v.  Hewitt,  SExch., 
240;  Greenland  v.  Chaplin,  5  Exch..  243,  and  Montoyer  v.  London  Insurance 
Co..  6  Exch.,  451." 

After  citing  and  commenting  upon  the  following  American  and  Enghsh 
cases,  as  sustaining  his  views,  namely,  Tweed  v.  Insurance  Co.,  7  Wallace, 
44;  Powell  V.  Deveny,  3  Cush.,  300;  Vandenburgh  v.  Truax,  4  Den.,  464; 
Hart  V.  West.  R.  Co.,  13  Met.,  99;  Perley  v.  Eastern,  R.  Co.,  98  Mass.,  414; 
Cleveland  V.  Grand  Trunk  R.  Co.,  42  Vt.,  449;  Piggott  v.  Eastern  Counties 
R.  Co.,  54  E.  C.  L.,  229;  Smith  v.  The  London  &  S.  W.  R.  Co..  5  L.  R.  C. 
P.,  98,  he  continues:  "  We  now  come  to  the  two  cases  chiefly  relied  upon 
by  appellee's  counsel.  They  are  quite  in  point,  but  we  are  wholly  unable  to 
agree  with  their  conclusions.  One  is  Ryan  v.  The  New  York  Central  Rail- 
road Co.,  35  N.  Y.,  214,  and  the  other  is  Kerr  v.  The  Pennsylvania  Railroad 
Co.,  decided  by  the  Supreme  Court  of  Pennsylvania,  at  its  May  term,  1870. 
These  two  cases  stand  alone,  and  we  believe  they  are  directly  in  conflict  with 
every  English  or  American  case  as  yet  reported,  involving  this  question.  * 
*  *  It  has  often  been  held  by  this  and  various  other  courts,  that  if  fire  is 
communicated  to  the  dried  grass  of  an  adjoining  field,  through  the  care- 
34 


530  THE  LAW  OF  DAMAGES. 

For  what  Consequences  Negligent  Wrongdoer  is  Answerable,  etc. 


And  in  a  recent  case  where  the  action  was  for  damages 
caused  bj  the  negligence  of  a  railroad  company,  by  which 
sparks  emitted  from  the  company's  engine  kindled  fires  in 
two  different  places,  on  lands  not  belonging  to  the  plaintiff, 
and  the  two  fires  spread  and  finally  uniting  passed  over  the 
lands  of  several  other  parties,  and  finally  reached  the  premises 

lessness  of  the  persons  managing  a  railway  locomotive,  and  spreads  over  the 
field,  no  matter  to  what  extent,  destroyinfj  haystacks,  fences  and  houses,  the 
company  is  liable.  The  correctness  of  these  decisions  is  not  assailed  by 
appellee's  counsel,  and  we  have  no  doubt  that  the  same  rule  would  be 
applied  by  the  courts  that  decided  the  cases  upon  which  counsel  rely.  But 
if  these  two  decisions,  in  New  York  and  Pennsylvania,  are  con-ect  law,  it 
must  be  held,  that  if  fire  is  communicated  from  the  locomotive  to  the  field  of 
A.,  and  spreads  through  his  field  to  the  adjoining  field  of  B.,  while  A.  must 
be  reimbursed  by  the  company,  B.  must  set  his  loss  down  as  due  to  a  remote 
cause,  and  suflFer  in  uncomplaining  silence.  Would  there  not  be  in  such  a 
decision,  a  sense  of  palpable  vnrong  which  would  shock  the  public  conscience 
and  impair  the  confidence  of  the  community  in  the  administration  of 
the  law.  *  *  *  *  Both  these  opinions,  upon  which  we  are  com- 
menting, expressly  admit,  as  both  courts  have  decided,  that  if,  through 
the  negligence  of  a  railway  company,  fire  is  communicated  to  the  building 
of  A.  he  may  recover.  But  suppose  the  building  is  a  wooden  tenement,  one 
hundred  feet  in  length  extending  from  the  railway.  In  the  Pennsylvania 
case  the  second  building  was  only  thirty-nine  feet  from  the  first.  We  pre- 
sume that  court  would  hold,  and  appellee's  counsel  would  admit,  that  A.  might 
recover  for  the  value  of  his  entire  building,  one  hundred  feet  in  length.  But 
suppose  B.  owns  the  most  remote  fifty  feet  of  the  building.  Could  he 
recover?  We  suppose  not  under  the  rule  announced  in  these  cases.  But 
why  should  he  not,  under  any  definition  of  proximate  cause  that  has  ever 
been  given  by  any  court  or  text  writer.  *  *  *  If  it  is  admitted  that  there 
may  be  a  recovery  for  the  second  fifty  feet  of  the  building  as  well  as  for  the 
first  when  there  is  one  continuous  building,  and  whether  owned  by  one  per- 
son or  by  two,  is  it  possible  that  when  the  second  fifty  feet  is  removed  a  short 
space  from  the  first,  but  is  still  so  near  that  the  burning  of  the  one  makes 
almost  certain  the  destruction  of  the  other,  there  can  be  no  recovery  ?  Is  not 
the  burning  of  the  second  building  still  '  the  natural  and  proximate  conse- 
quence of  the  act  complained  of?  '  It  seems  to  us  that  the  arbitrary  rule 
enforced  in  these  two  cases,  which  is  simply  this,  that  where  there  is  negli- 
gence, there  may  be  a  recovery  for  the  first  house  or  field,  but  in  no  event  for 
the  second,  rests  on  untenable  ground,  and  would  involve  the  administra- 
tion of  the  law  in  cases  of  this  character  in  absurd  inconsistencies.  *  *  * 
The  Court  of  Appeals  of  New  York,  and  the  Supreme  Court  of  Pennsylva- 
nia, seem  from  their  opinions  to  have  attached  great  weight  to  an  argument 
urged  upon  us  by  the  counsel  for  the  appellee,  and  indeed  that  argument 


NEGLIGENCE.  531 


For  what  Consequences  Negligent  Wrongdoer  is  Answerable,  etc. 

of  the  plaintiff,  about  four  miles  distant  from  the  point  where 
it  first  started,  and  there  destroyed  the  property  of  the  plain- 
tiff; the  court  held,  that  the  loss  was  not  too  remote  to  allow  a 
recoveiy."  The  same  doctrine  has  been  recently  maintained 
in  Wisconsin." 

seems  to  have  been  the  cliief  reason  for  announcing'  a  rule  which  both  courts 
struggle  in  vain  to  show  is  not  in  conflict  with  all  prior  adjudications.  That 
argument  is  in  brief  that  an  entire  village  or  town  is  liable  to  bo  burned 
down  by  the  passing  of  the  fire  from  house  to  house,  and  if  the  railway  com- 
pany, whose  locomotive  has  emitted  the  cinders  that  caused  the  fire,  is  to  be 
charged  with  all  the  damages,  these  companies  would  be  in  constant  danger  of 
bankruptcy,  and  of  being  obliged  to  suspend  their  operation.  We  confess 
ourselves  wholly  unable  to  see  the  ovei'powering'  force  of  this  argument.  It 
proceeds  upon  the  assumption  that  if  a  great  loss  is  to  be  suffered,  it  had 
better  be  distributed  among  a  hundred  innocent  victims,  than  wholly  visited 
upon  the  wrongdoer.  As  a  question  of  law  or  ethics  the  j)roposition  does  not 
commend  itself  to  our  reason.  We  must  still  cling  to  the  ancient  doctrine,  that 
the  wanton  wrongdoer  must  take  the  consequences  of  his  own  act,  whether 
measured  by  a  thousand  dollars  or  a  hundred  thousand." 

6  Atkinson  T.  &  S.  F.  R.  Co.  v.  Sanford,  12  Kans.,  354  (1874).  The  Supreme 
Court  of  Kansas,  per  Valentine',  J.,  say:  "After  a  careful  examination  of 
this  question  we  are  satisfied,  both  upon  reason  and  authority,  that  the  dam- 
age is  not  too  remote  to  be  recovered.  We  have  already  decided  that  where 
the  fire  runs  thirty  rods  from  the  place  where  it  is  first  kindled,  and  there 
does  damage,  the  plaintiff  may  recover.  (St.  Jo.  &  D.  C.  R.  Co.  v.  Chase, 
11  Kans.,  47.)  Now  if  the  plaintiff  may  recover  when  the  fire  has  run  thirty 
rods,  why  may  he  not  recover  when  the  fire  has  run  forty  rods,  or  a  mile,  or 
four  miles.  Will  it  be  claimed  that  the  ownership  of  the  property  over  which 
the  fire  runs  can  make  any  difference.  *  *  *  The  first  efficient  and  ade- 
quate cause,  as  well  as  every  intermediate  cause  necessarily  following  from 
the  first  cause,  is  always  held  in  law  to  be  the  proximate  cause,  unless  some 
new  cause,  independent  of  the  first  cause,  shall  intervene  between  the  first 
cause  and  the  fi.nal  injurious  result.  This  is  equally  true  where  the  successive 
events  are  separated  by  clearer  and  better  defined  outlines  than  they  are 
in  the  burning  of  prairie  grass,  or  a  stubble  field.  *  *  *  Why  should 
not  every  person  whether  far  away  or  near,  recover  for  the  wrongful  acts 
of  another?  Even  if  it  should  bankrupt  the  -wrongdoer,  would  that  be  any 
reason  for  not  compensating  an  innocent  sufferer?  As  a  question  of  etliics 
and  morals,  as  well  as  of  law,  where  a  great  loss  is  to  be  borne  by  some- 
body who  should  bear  it,  the  innocent  or  theguUty?" 

7KeUogg  V.  Chicago  &  N.  W.  R.  Co.,  26  Wis.,  223.  See,  also,  Pearly  v. 
Eastern  R.  Co.,  98  Mass.,  415;  Hart  v.  West.  R.  Co.,  13  Met.,  99;  Annapo- 
lis &  E.  R.  Co.  V.  Gantt,  39  Md.,  115;  Kellogg  v.  Milwaukee  &  St.  P.  R.  Co., 
Cent.  L.J.  Vol.  1,278.  MiUer  and  DiUon,  J.  J.,  U.  S.  Circ.  Ct.,  Dist.of  Iowa, 
May  T.  1874;  Whart.  on  Neg.,   §  154;  ante,  §  50  and  notes. 


532  THE  LAW  OF  DAMAGES. 


Successive  Nesligence  of  DifEerent  Parties. 


§  G6G.    Successive  Negligence  of  Different  Parties  .— 

Interesting  questions  have  been  presented  where  losses  have 
been  occasioned  bv  the  successive  negligence  of  two  or  more 
parties.     Thus,  suppose  that  through  the  carelessness  of  a  rail- 
road company  in  not  using  a  proper  "  spark  arrester,"  sparks 
escape  from  its  locomotive,  which  falling  on  dry  rubbish  care- 
lessly left  by  another  party  scattered  over  his  premises  near 
the  railroad,  and  fanned  by  the  wind,  it  takes  fire  and,  fed  by 
the  rubbish,  it  is  driven  by  the  wind  to  the  buildings  of  another 
party  which  are  thereby  consumed.     Which  party  is  liable  for 
the  loss?     It  is  maintained  that  in  such  a  case  the  railroad 
company  is  only  one  of  the  occasions  of  the  loss,  and  not  the 
cause;  that  where  between  such  an   occurrence  and  the  loss, 
there  intervenes  the  negligence  of  another  party  without  which 
last  negligence  the  loss  would  not  have  occurred,  then  the  for- 
mer is  not  liable.^ 

9  Whart.  on  Neg.,  §  134.  et  seq.  "Supposing  that  had  it  not  been  for  the 
intervention  of  a  responsible  third  party,  the  defendant's  negUgence  would 
have  produced  no  damage  to  the  plaintiff,  is  the  defendant  liable  to  the 
plaintiff?  This  question  must  be  answered  in  the  negative,  for  the  general 
reason  that  causal  connection  between  negligence  and  damage  is  broken  by 
the  interposition  of  independent,  responsible  human  action.  1  am  negligent 
on  a  particular  subject  matter.  Another  person,  mo\dng  independently, 
comes  in,  and  either  negligently  or  maliciously  so  acts  as  to  make  my  negli- 
gence injurious  to  a  third  person.  If  so,  the  person  so  intervening  acts  as  a 
non-conductor,  and  insulates  my  negligence,  so  that  I  cannot  be  sued  for  the 
mischief  which  the  person  so  intervening  directly  produces.  He  is  the  one 
who  is  liable  to  the  person  injured.  1  may  be  liable  to  him  for  my  negli- 
gence in  getting  him  into  difficulty,  but  I  am  not  liable  to  others  for  the  neg- 
ligence which  he  alone  was  the  cause  of  making  operative."     Id. 

On  the  other  hand,  but  for  the  negligence  of  the  first  person,  in  the  case 
stated  in  the  text,  the  negligence  of  the  second  would  not  have  resulted  in  any 
loss.  Why  should  the  latter  be  required  to  pay  damages  occasioned  by  his 
negligence,  when  no  loss  would  have  resulted  from  the  negligence  but  for  the 
active  negligence  of  the  former?  Would  it  not,  in  such  cases,  be  more  con- 
sonant with  principles  of  justice  and  equity  to  require  the  parties  equally  cul- 
pable to  contribute  equally  in  satisfaction  of  the  loss.  See  Kellogg  v.  Chi- 
cago &  N.  W.  R.  Co.,  26  Wis.,  223. 

We  have,  in  treating  of  contributory  negligence,  considered  the  doctrine, 
recognized  in  Illinois,  of  comparative  negligence.    This  doctrine  would  go 


NEGLIGENCE.  533 


Damages  in  Cases  of  Negligence— Elements  of. 


§  667.    Damages  in  Cases  of  Negligence— Elements 

of. — In  many  cases  there  can  be  no  precise  rule  for  tlie  esti- 
mate of  damages  arising  from  negligence,  or  by  which  the 
extent  of  the  recovery  can  be  prescribed."  If  the  action  be 
for  an  injury  to  the  person,  the  compensation  is  frequently  to 
a  large  extent,  for  pain  and  suffering  of  mind  or  body,  which 
cannot  be  accurately  estimated  in  dollars  and  cents."'  It  may 
be  observed  that  the  general  principles  which  we  have  referred 
to,  as  applicable  in  the  measure  of  damages  generally  in 
actions  for  torts,  are  applicable  in  cases  of  negligence,  whether 
of  mis-feasance  or  non-feasance.'* 

In  general  it  may  be  said  that  for  an  injury  to  the  person 
resulting  from  negligence,   the  damages   may  embrace  the 

nearly,  if  not  quite,  to  the  len^h  of  making  the  right  to  recover  to  depend 
upon  the  question  as  to  which  of  the  parties  was  most  in  fault.  A  limited 
doctiine  of  this  kind  has  been  recognized  in  many  cases;  such  as  that  if  the 
plaintiff's  fault  was  slight  in  comparison  with  that  of  the  defendant's  gross 
negligence,  the  plaintiff  may  recover.  And  it  maybe  worthy  of  serious  con- 
sideration, if  it  would  not  promote  justice,  in  these  cases,  as  well  as  in  those 
cases  of  consecutive  neghgence  which  we  have  referred  to,  if  there  was  a  divis- 
ion of  the  losses  or  some  plan  of  apportionment  of  the  damages,  according 
to  the  degree  of  fault  of  the  respective  parties.  This  doctrine  is  recognized 
in  the  Admiralty  Courts;  as  where  a  coUision  occurs  through  the  negligence 
or  fault  of  both  parties.  In  such  a  case,  the  damages  are  equally  divided 
between  them.  Vaux  v.  Sheffer,  8  Moo.  P.  C.  C,  75;  The  Milan,  31  L.  J. 
Adm.,  105. 

'^  If  the  damages  sustained  cannot  be  accurately  determined,  the  wrong- 
doer must  bear  the  burden  of  such  difficulty,  and  where  the  evidence  seems 
equally  balanced  between  two  or  more  amounts,  he  must  pay  the  larger  sum. 
Shear.  &  R.,  on  Neg.,  §  594. 

'7  Walker  v.  Erie  R.  Co.,  64  Barb.  (N.  Y.),  299.  For  other  authorities 
showing  in  what  cases  the  question  of  negUgence  is  held  to  be  one  of  law  to 
be  decided  by  the  court,  as  where  the  facts  are  undisputed  or  conclusively 
proved,  and  when  to  be  submitted  to  the  jury,  as  when  the  facts  are  disputed 
or  the  evidence  conflicting,  see,  Greenleaf  v.  111.,  etc.,  R.  Co.,  29  la.,  14; 
Jenkins  v.  Little  Miami  R.  Co.,  2  Disney  (0.),  49;  Belton  v.  Baxter,  2 
Sweeney  (N.  Y.),  339;  Penn.  Canal  Co.  v.  Bentley,  66  Pa.  St.,  30;  Smith  v. 
Clark,  3  Lans.  (N.  Y.),  208;  Maloy  v.  N.  Y.  Cen.  R.  Co.,  58  Barb,,  182. 

»8  See,  ante,  §  599,  et  seq.    Also,  Shear.  &  R.  on  Neg,,  §  598. 


534  THE  LAW  OF  DAMAGES. 


Damages  in  Cases  of  Negligence— Elements  of. 


expenses  of  cure;"  the  value  of  time  lost  thereby ;="  a  fair 
compensation  for  physical"  and  mental  suffering,  caused  by 
the  wrong;  any  permanent  disability  and  diminution  of 
power  to  earn  money;"  and  also,  exemplary  damages  whei'e 
such  are  proper  under  all  the  circumstances  of  the  case,  and 
in  accordance  with  principles  already  laid  down."  Nor  is  the 
wrongdoer  entitled  to  a  deduction  of  the  amount  received  by 
the  injured  party  from  an  insurance  company  on  account  of 
the  injuries  received.^* 

'9  Peoria  Bridge  Association  v.  Loomis,  20  111.,  235;  Beardsley  v.  Swan,  4 
McLean,  333;  Ransom  v.  N.  Y.  &  Erie  R.  Co.,  15  N.  Y.,  415;  Moody  v. 
Osgood,  50  Barb.,  628. 

«>  Wade  V.  Leroy,  20  How.  (U.  S.),  34;  Morse  v.  Auburn,  etc..  R.  Co.,  10 
Barb.,  621;  Holyoke  v.  Grand  Trunk  R.  Co.,  48  N.  H.,  541. 

^'  Ransom  v.  N.  Y.  &  Erie  R.  Co.,  15  N.  Y.,  415;  Curtis  v.  Rochester,  etc., 
R.  Co.,  20  Barb.,  282;  Linsley  v.  Bushnell,  15  Conn.,  225;  West  v.  Forest,  22 
Mo.,  844. 

=«  Masters  v.  Warren,  27  Conn.,  293;   Seger  v.  Barkhenstead,  22  Conn., 
290;  Wadev.  Leroy,  20  How.  (U.  S.),  34;  Curtis  v.  Rochester,  etc.,  R.  Co., 
18  N.  Y.,  534. 
^3  Winters  v.  Hannibal,  etc.,  R.  Co.,  39  Mo.,  468.     See,  also,  ante,  §  84. 
=■*  Harding  V.  Townshend,  43  Vt.,  536. 

Mr.  Mayne  observes  as  follows:     "  Very  little  can  be  said  with  certainty 
as  to  damages  for  personal  injuries  inEicted  by  negligence.     Loss  of  time 
during  the  cure,  and  expense  incurred  in  respect  of  it,  are  of  course  matters 
of  easy  calculation.     Pain  and  suifering  undergone  by  the  plaintiff  are  also 
a  ground  of  damages.     And  in  this  point  such  an  action  differs  from  one 
brought  by  the  personal  representatives  where  a  death  has  ensued.     Any 
permanent  injuiy,  especially  when  it  causes  a  disability  from  future  exertion, 
and  consequently  pecuniary  loss,  is  also  a  ground  of  damage.     This  is  one  of 
the  cases  in  which  damages  most  signally  fail  to  be  a  real  compensation  for  the 
loss  sustained.    In  one  case  Park,  B.,  said:    '  It  would  be  most  unjust,  if, 
whenever  an  accident  occurs,  juries  were  to  visit  the  unfortunate  cause  of  it 
with  the  utmost  amount  which  they  think  are  equivalent  for  the  mischief  done. 
Scarcely  any  sum  could  compensate  a  laboring  man  for  the  loss  of  a  limb, 
yet  you  do  not  in  such  a  case  give  him  enough  to  maintain  him  for  life. 
No  rule  can  be  laid  down  in  such  a  case;  and  although  a  jury  are  frequently 
cautioned  not  to  let  their  verdict  be  influenced  by  the  poverty  of  the  plaintiff 
and  the  wealth  of  the  defendant,  yet  the  caution  is  probably  seldom  much 
attended  to."     Mayne  on  Dam.,  351,  (2  ed.);  Ashworth  v.  S.  E.  R.  Co.,  11 
Jur.,  760;  18  Q.  B.,  104.    See,  also,  ante,  §  396  and  Chaps.  21,  22  and, i)os^ 
Chap.  23. 


NEGLIGENCE.  535 


Illustrations. 


§668.  Illustrations.— In  an  action  for  injuries  caused 
bj  negligence,  including  the  malpractice  of  physicians  and 
surgeons,  the  proper  elements  of  damages  are  loss  of  time 
sustained  thereby,  expenses  incurred  by  care  and  attendance, 
suifering  of  mind  and  body,  and  any  prospective  injury, 
especially  when  it  causes  disability  for  labor  and  exertion  and 
consequent  pecuniary  loss,"  and  which  it  is  reasonably  certain 
will  continue."" 

So,  in  a  recent  case  in  Mississippi,  in  an  action  against  a 
railroad  company  for  loss  sustained  by  its  negligence,  the 
court  held,  that  a  jury  in  estimating  compensatory  damages, 
for  injuries  to  the  person  of  a  passenger  on  a  railway  train 
could  take  into  consideration  loss  of  time,  expenses,  bodily 
pain,  cost  of  medicines,  medical  attendance  and  mental  suf- 
fering caused  by  the  injuries;  and  also  future  damages  caused 
by  loss  of  health,  of  time,  and  of  the  use  of  limbs."  And 
it  has  been  held  proper  in  an  action  for  personal  injuries, 
for  the  plaintiff  to  show  the  amount  he  was  earning  at  his 
trade  at  and  about  the  time  of  the  injury,'"  and  the  amount 
of  profits  of  his  business,  as  affording  some  evidence  of  what 
he  might  have  earned  if  he  had  not  been  injured."" 

=s  Peoria  Bridge  Association  v.  Loomis,  20  111.,  235;  Canning  v.  Williams- 
town,  1  Cush.  (Mass.),  451 ;  Ballon  v.  Farman,  11  Allen  (Mass.),  73;  Hopkins, 
V.  Atlantic  R.  Co.,  36  N.  H.,  9;  Curtis  v.  Rochester,  etc.,  R.  Co.,  20  Barb. 
282;  Wade  v.  Leroy,  20  How.,  34;  Oakland  R.  Co.  v.  Fielding,  48  Pa. 
St.,  320;  Eden  v.  Lexington,  etc.,  R.  Co.,  14  B.  Mon.,  204  (1853). 

*  Frink  v.  Scroyer,  18  111.,  416;  Hunt  v.  Hoyt,  20  111.,  544,  where  in  an 
action  by  husband  and  wife  for  an  injury  sustained  by  the  defendant's  negli- 
gence, it  was  held  that  the  jury  might  consider  the  length  of  time  she  would 
be  ill  in  consequence  of  her  injuries.  See,  also  a  recent  case,  Holyoke  v. 
Grand  Trunk  R.  Co.,  48  N.  H.,  541  (1869);  Curtis  v.  Rochester,  etc.  R.  Co., 
18  N.  Y.,  534;  20  Barb.  (N.Y.),  282. 

^Memphis,  etc.,  R.  Co.  v.  Whitfield,  44  Miss.,  466  (1871).  See,  also, 
Spicer  v.  Chicago  &  N.  W.  R.  Co.,  29  Wis.,  580  (1872.) 

»8  Beisigel  v.  New  York  Cent.  R.  Co.,  40  N.  Y.,  9  (1869). 

89  Hanover  R.  Co.  v.  Coyle,  55  Pa.  St.,  896. 


536  THE  LAW  OF  DAMAGES. 

Damages  to  Real  Property  from  Negligence— Personal  Property,  etc. 

§  609.— Damages  to  Real  Property  from  Negligence. 

— If  the  negligent  injury  relates  to  real  property  the  ordinary 
rule  of  damages  on  general  principles,  is  the  difference  between, 
the  market  value  of  the  property  immediately  before  and  its 
like  value  immediately  after  the  injury  occurred/"  But  this 
is  not  the  universul  rule,  as  where  the  injurj''  can  be  repaired 
at  a  slight  expense;  in  which  case  the  expense  of  repairs  would 
furnish  the  most  satisfactory  measure.^'  And  where  fruit  or 
shade  trees  are  destroyed,  the  value  of  the  trees  may  be 
recovered  apart  from  the  value  to  the  land."  So,  if  the  injury 
be  to  a  well,  by  rendering  the  water  impure,  the  jury  may 
consider  in  estimating  damages,  the  cost  of  furnishing  pure 
water  to  the  plaintiff  and  his  family,  and  give  damages  there- 
for.'^ But  damaeres  to  real  estate  will  hereafter  be  fullv  con- 
sidered. 

§  670.  Personal  Property— Damages.— For  negligent 
injury  to  personal  property,  the  same  general  principles  of 
damages  apply  that  we  have  observed  as  applicable  in  case  of 
trespass.  The  difference  in  value  immediately  before  and 
again  immediately  after  the  injury,  would  usually  furnish 
the  measure  of  damages.'^  But  this  can  never  exceed  the 
value  of  the  property.  If  the  property  is  totally  destroyed 
of  course  the  owner  should  recover  its  full  value.  If  the 
injury  is  to  domestic  animals  the  owner  should  also  be  remun- 
erated for  any  reasonable  care  and  efforts  to  restore  them,  in 
addition  to  their  depreciated  value  by  reason  of  the  injury,  or 
their  full  value,  where  after  due  care  and  attention  they  are 

30  McGui:-e  v.  Grant,  1  Dutch.,  356. 

3'  Terry  v.  Mayor,  etc.,  of  N.  Y.,  8  Bosw.,  504.  See,  also,  rule  of  damages 
for  injury  to  real  estate  generally,  post.  Chap.  30. 

32  Whitbeck  v.  N.  Y.  Cent.  R.  Co.,  36  Barb.,  644;  Chicago,  etc.,  R.  Co.  v. 
Ward.  16  111.,  522;  Hassa  v.  Junger,  15  Wis.,  578. 

33  Ottawa  Gas  Co.  v.  Graham,  28  111.,  73.  See,  also,  as  to  overflowing  lands, 
Markham  v.  Great  Northern  R.  Co.,  33  L.  J.  (Q.  B.),  279. 

34  See,  post,  Chap.  32 


NEGLIGENCE.  537 


Damages  In  Other  Cases. 


finally  lost;^^  and  for  time  spent  and  expenses  incurred  in 
searching  for  them,  where  they  have  strayed  and  become  lost 
by  the  negligence  of  the  defendant." 

§  672.  Damages  in  Other  Cases. — We  have  already 
considered  the  subject  of  damages  for  negligence  by  public 
officers,  telegraph  companies,  and  bailees  in  general,  and 
for  injuries  resulting  in  death,  and  reference  may  be  had  to 
those  subjects  where  the  rule  of  damages  in  those  cases  are 
discussed. 

35  Watson  v.  Lisbon  Bridge  Co.,  14  Me.,  201.  But  this  rule  has  received 
this  qualification,  that  the  whole  sum  recoverable  shall  not  exceed  the  value 
of  the  animal.  Gillet  v.  Western  R.  Co.,  8  Allen,  560.  This  qualification 
is  hardly  maintainable  on  principle. 

36  North  Missouri  R.  Co.  v.  Akers,  4  Kans.,  453  (1868). 


538  THE  LAW  OF  DAMAGES. 


General  Rule— Illustrations. 


CHAPTEE  XXIII. 


FALSE  IMPRISONMENT. 

Section  679.  General  Rule— Illustrations. 

681.  Matters  in  Aggravation— Exemplary  Damages. 

682.  Mitigation. 

683.  "What  May  be  Shown  in  Defense. 

§679.  General  Rule— Illustrations. — False  imprison- 
ment is  any  arrest  or  imprisonment  without  authority  of  law, 
and  embraces  any  unlawful  restraint  of  one's  liberty,  or  "an  un- 
lawful restraint  of  a  person,  contrary  to  his  will,  either  with  or 
without  process  of  law;'"  and  this  is  a  wrong  for  which  an 
action  for  damages  may  be  maintained.  The  general  princi- 
ple in  such  cases,  free  from  any  express  malice,  is,  that  the 
party  injured  may  recover  the  actual  damage  suffered  in  con- 
sequence of  the  imprisonment,  including  counsel  fees,  and 
other  expenses  incurred  in  procuring  a  discharge,  loss  of  time, 
interruption  of  business,  and  bodily  and  mental  suffering.' 
Where,  upon  the  advice  of  counsel,  defendant  applied  to  a 
court  of  general  jurisdiction,  for  a  writ  of  ne  exeat  against 
the  plaintiff,  and  it  was  allowed  without  authority  of  law,  and 

'  Bouv.  L.  Die. 

=  Bonesteel  v.  Bonesteel,  30  Wis.,  511 ;  Pritchet  v.  Boevey,  1  Cro.  &  M.,  775; 
Blythe  v.  ThompHns,  2  Abb.  Pr.  R.,  468;  Farall  v.  Barnett,  22  Eng., 
L.  &  Eq.,  179;  Parsons  v.  Harper,  16  Grat.  (Va.),  64.  The  damages  in 
actions  for  assault  or  false  imprisonment  wUl  vary  according  to  the  circum- 
stances of  the  case.  Mayne  on  Dam.,  262.  See,  also,  damages  for  assault  and 
battery  where  the  same  general  principles  prevail,  ante  §  599,  et  seq. 


FALSE  IMPKISOKMENT.  639 


Illustrations. 


the  plaintiff  was  arrested  thereon,  it  was  lield  that  these  facts 
did  not  furnish  evidence  of  express  malice  nor  authorize  puni- 
tive damages,  and  that  a  request  afterward  made  of  the  judge 
(by  telegram),  not  to  vacate  the  writ,  or  discharge  the  plain- 
tiff until  defendant  could  be  heard,  and  a  statement  by  the  de- 
fendant that  he  was  displeased  when  he  heard  of  the  discharge 
and  disapproved  the  action  of  the  judge  in  granting  it,  was 
insufficient  to  show  malice.'  So,  where  a  defendant  was  ar- 
rested and  threatened  with  imprisonment  upon  a  writ  in  a 
civil  action,  void  for  irregularity  and  the  want  of  a  proper  af- 
fidavit, and  was  compelled  to  promise  not  to  abscond,  and 
procured  friends  to  vouch  for  him,  and  was  subjected  to  ex- 
pense in  procuring  an  order  setting  aside  the  writ  six  days 
after  its  issuance,  it  was  held  that  he  could  recover  for  this 
interference  with  his  person  and  restraint  of  his  liberty,  though 
he  was  not  actually  imprisoned  and  did  not  give  the  bond 
required  by  the  writ,  and  though  there  was  no  express 
malice." 

§  680.  And  when  the  warrant  is  in  fact  void,  as  where  the 
court  or  magistrate  issuing  the  same  has  no  jurisdiction  of 
the  offense  or  subject  matter  for  which  the  warrant  issued, 
which  fact  is  apparent  from  the  warrant  itself,  or  where  it  is 
irregular  on  its  face,  or  where  the  officer  arrests  some  other 
party  than  the  one  commanded  by  the  writ  to  be  arrested;  in 

3  Bonesteel  v.  Bonesteel,  30  Wis.,  511.  See  also  Fuller  v.  Bowker,  11  Mich., 
204. 

4  Bonesteel  v.  Bonesteel.  28  Wis.,  245.  See  also,  Bauer  v.  Clay,  8  Kan.,  580; 
Brusbaber  V.  Stegemann,  22  Micb.,  266;  Johnson  v.  Tompkins,  Baldw.,  571; 
Pike  V.  Hamson,  9  N.  H.,  491;  Floyd  v.  State,  1  Ark.,  43;  Gavin  v.  Blocker, 
2  Brev.  (S.  C),  157.  Vindictive  damages  will  not  be  allowed  a  seaman  for 
an  unlawful  imprisonment  by  the  master  of  the  vessel,  unless  the  motives  of 
the  master  were  bad,  but  he  may  recover  for  the  time  of  his  imprisonment, 
the  value  of  his  articles  sold  or  lost  in  consequence  thereof,  the  amount  nec- 
essarily paid  for  his  passage  home,  and  interest  on  the  same,  as  proper  ele- 
ments of  damage.  Jay  v.  Abey,  1  Woodb.  &  M.,  262.  See  also,  The  Mar- 
ca,  Blatchf.  &  H.  Adm.,  331. 


540  THE  LAW  OF  DAMAGES. 


Matters  in  Aggravation— Exemplary  Damages. 


all  such  cases  the  oflScer  is  liable  in  damages  for  the  arrest  or 
imprisonment,  and  the  process  is  no  protection  to  him. 

Thus,  where  a  statute  authorizes  constables  to  arrest  with- 
out a  warrant  on  theirown  view  of  the  commission  of  a  crime, 
or  on  the  speedy  information  of  others,  persons  guilty  of  des- 
ignated offenses,  a  constable  wlio  arrests  a  person  for  one  of 
such  offenses  on  a  warrant  which  he  supposes  to  be  valid  but 
which  is  in  fact  void,  and  without  other  information  than  that 
contained  in  the  warrant,  cannot  plead  tlie  statute  authorizing 
an  arrest  without  a  warrant,  in  justification  of  the  arrest* 
But  the  ofhcer  is  justified  if  the  warrant  is  fair  on  its  face 
and  shows  jurisdiction  in  the  person  issuing  it,  as  against  the 
person  named  in  the  warrant.'  So,  a  warrant  of  arrest  and 
imprisonment,  in  which  the  christian  name  of  the  defendant 
is  omitted,  is  no  protection  to  the  officer  serving  it.^ 

§  C81.  Matters  in  A^sravation— Exemplary  Dama- 
ges.— When  the  arrest  or  imprisonment  is  malicious  or  in  bad 
faith  more  liberal  damages  may  be  given,  and  even  exemplary 
or  punitive  damages  may  be  allowed.  Thus,  where  the 
employes  of  a  railroad  company  were  arrested  under  criminal 
process  for  malicious  injury  to  a  building  belonging  to  the  com- 
pany which  they  were  engaged  in  removing,  and  were  brought 
before  a  magistrate,  but  were  subsequently  released,  the  per- 
sons ordering  the  arrest,  saying  they  did  not  wish  to  prosecute 
them  further,  as  they  had  sued  out  an  injunction  restraining 
the  company  from  removing  the  building;  it  was  held,  that 
those  causing  the  arrest  were  liable  in  damages  for  tlie  false 
imprisonment,  as  the  prosecution  was  a  sham;  and  that  under 
the  circumstances  the  damages  were  aggravated  rather  than 

s Perry  v.  Jolinson,  37  Conn.,  32  (1875).  2  Hill,  on  Torts,  185,  et  seq.,  and 
notes,  189. 

« Decker  V.  Bryant,  7  Barb.,  182. 

7 Trail  V.  McDonald,  7  Kan.,  427.  See  also,  State  v.  Queen,  66  N.  C,  615; 
Gardner  v.  Bain,  5  Lans.  (N.  Y.),  256. 


FALSE  IMPRISONMENT.  541 


Mitigation. 


diminished,  because  the  forms  of  legal  process  were  made  use 
of  to  accomplish  a  sham  arrest.' 

§682.  Mitigation. — In  an  action  for  damages  for  false 
imprisonment,  the  advice  of  an  attorney  who  instituted  the 
suit,  cannot  justify  the  arrest,  but  the  advice  of  even  an  inex- 
perienced attorney  may  properly  be  shown  in  mitigation  of 
damages.' 

So,  although  mere  words  will  not  justify  an  assault  and 
battery,  or  a  false  imprisonment,  yet,  in  an  action  for  impris- 
oning the  plaintiff  without  cause,  seditious  language  used  by 
him  of  a  gross  and  violent  character,  and  which  influenced  the 
defendant  to  order  his  arrest,  may  be  shown  in  mitigation.'" 

Where  a  private  person  makes  an  arrest  under  circumstances 
•which  do  not  justify  him,  but  would  justify  an  officer,  he  should 
be  held  to  pay  reasonable  and  fair  damages  according  to  the 
circumstances.  But  these  damages  should  be  mitigated,  where 
there  were  reasonable  and  probable  causes  which  induced  it. 
And  where  an  arrest  of  this  kind  was  made  upon  reasonable  and 
strong  grounds  for  suspecting  a  larceny,  a  verdict  for  $3,000  in 
an  action  for  the  false  imprisonment  was  set  aside  as  exces- 
sive." 

So,  where  an  order  was  issued  by  the  adjutant  general  of 
the  state,  by  order  of  the  executive,  to  officers  of  the  state 
militia,  for  the  arrest  of  certain  persons  supposed  to  be 
connected  with  the  assassination  of  some  government  officers, 
it  was  held  that  these  facts,  though  no  defense  to  an  action  for 

8  Fellows  V.  Goodman,  49  Mo.,  62.  See,  also,  Hamlin  v.  Spaulding,  27 
Wis.,  360;  Bashaber  v.  Stegemann,  22  Mich.,  300;  Brown  v.  Chadsey,  39 
Barb.,  253;  Marsh  v.  Smith.  49  111.,  396;  Wamick  v.  Foulks,  12  Mees.  & 
Wels.,  507,  where  it  was  held  that  a  plea  that  plaintiff  was  guilty  of  larceny 
for  which  he  was  arrested,  although  subsequently  withdrawn  and  no  defense 
made,  was  a  fact  in  aggravation. 

9  Mortimer  v.  Thomas.  23  La.  An.,  165. 

"  McCall  V.  McDoweU.  1  Abb.,  (U.  S.),  212;  Deady  (U.  S.,  C.  &  D.),  283. 
"  Renck  v.  McGreggor,  32  N.  J.  L.,  70. 


542  THE  LAW  OF  DAMAGES. 

What  may  be  Shown  in  Defense. 

false  imprisonment,  might  nevertheless,  be  shown  in  mitiga- 
tion damages," 

§  683.  What  m«ay  be  shown  in  Defense.~A  warrant  of 
arrest,  or  mittimus  from  a  competent  court  or  magistrate  hav- 
ing jurisdiction  of  the  offense,  and  valid  on  its  face,  would  be 
a  justification  of  and  protection  to  an  officer,  in  making  an 
arrest  and  imprisoning  the  party  designated,  according  to  the 
command  of  the  process.  So,  a  ministerial  officer  is  protected 
in  the  execution  of  process  valid  on  its  face,  issued  by  a  court 
or  magistrate  having  jurisdiction  of  the  subject  matter  to 
which  it  relates.'* 

And,  in  Oregon  it  has  been  held  that  a  private  person  may 
justify  an  arrest  for  felony  by  a  mere  preponderance  of  evi- 
dence that  the  accused  had  been  guilty  of  a  felony;  and  may 
justify  the  firing  of  a  gun  upon  the  accused  by  evidence  that 
that  mode  of  making  the  arrest  was  necessary.'^  So,  evidence 
of  threats  made  to  an  officer  by  a  brother  of  the  plaintiff  after 
the  arrest,  is  admissible  for  the  purpose  of  justifying  the  officer 
in  putting  the  plaintiff  in  irons.'*  So,  where  there  was  evi- 
dence that  the  plaintiff  who  was  arrested  by  a  police  officer, 
on  information  that  he  had  committed  a  felony,  resisted  and 
continued  to  resist  while  being  conveyed  to  the  station  house, 
and  threatened  he  would  murder  the  defendant,  or  any  one 
who  attempted  to  arrest  him;  it  was  held,  that  these  facts  were 
admissible  in  evidence  as  bearing  ujjon  the  question  of  the 
propriety  of  the  force  used  by  the  defendant." 

'3  Carpenter  v.  Parker,  23  la.,  450.  Proof  of  probable  cause  to  suspect  the 
plaintiff  guilty  of  the  crime  for  which  he  was  arrested,  may  be  shown  in 
mitigation.    Mayne  on  Dam.,  263,  et  seq. 

'^  McLean  v.  Cook,  23  Wis.,  364  (1868);  Shaw  v.  Davis, 55  Barb.  (N.  Y.), 
389  (1870).  See,  also,  Underwood  v.  Robinson,  106  Mass.,  296  (1871).  "  A 
recovery  in  an  action  for  false  imprisonment  is  no  bar  to  another  action  for  a 
malicious  prosecution."  Mayne  on  Dam.,  263;  Johnson  v.  Maxon,  23  Mich., 
129. 

's  Lander  v.  Miles,  3  Oreg.,  35.  See,  also,  as  to  justification  for  an  arrest 
of  a  suspected  person,  by  military  order,  Teagarden  v.  Graham,  31  Ind.,  422. 

'«  Cochran  v.  Toher,  14  Minn.,  385. 

'7  Fulton  V.  Staats,  41  N.  Y.,  498. 


MALICIOUS  PEOSECUTION.  543 

Elements  of  Damage  in  Case  of. 


CHAPTER  XXIY. 


MALICIOUS  PROSECUTIOK 

Section  685.  Elements  of  Damages  in  Case  of. 

686.  Elements  of  the  Action. 

687.  Measure  of  Damages. 

688.  Mitigation. 

689.  Conclusion. 

690.  Defense. 

§  685.  Elements  of  Damages  in  Case  of.— Closely 
related  to  the  action  for  false  imprisonment  is  that  for  malic- 
ious prosecution.  And,  it  may  be  averred  that  whenever  a 
person  sustains  damages  to  his  reputation,  life,  limb,  liberty, 
or  property,  by  reason  of  a  malicious  prosecution,  he  may 
recover  therefor.  The  elements  of  damages  in  such  cases  are 
as  follows: 

1.  Damages  to  a  man's  fame,  as  if  the  matter  whereof  he 
is  accused  be  scandalous. 

2.  Damages  from  the  hazard  or  possibility  of  losing  life, 
limb,  or  liberty. 

3.  Damages  to  a  man's  property,  as  where  he  is  forced  to 
expend  money  to  acquit  himself  of  the  crime  of  which  he  is 
accused.'* 


'5 1  Ld.  Raym.,  374;  Chapman  v.  Pickersgill,  2  Wills.,  145;  Sheldon  v. 
Carpenter.  4  N.  Y.,  578;  Mayne  on  Dam.,  259.  As  to  damages  for  wrong- 
fully and  maliciously  suing  out  an  attachment,  see  Goldsmith  v.  Picard,  27 
Ala.,  142;  Donnell    v.  Jones,  13  Ala.,  490;  ante,  §  549,  et  seq. 


544  THE  LAAV  OF  DAMAGES. 

Elements  of  the  Action— Measure  of  Damages. 

§  686.  Elements  of  the  Action.— It  is  not  our  purpose 
in  discussing  the  law  of  damages,  to  enter  upon  any  full  con- 
sideration of  the  general  law  relating  to  the  subjects  consid- 
ered; suffice  it  to  say,  that  the  following  are  essential  elements 
of  an  action  for  a  malicious  prosecution: 

1.  That  the  plaintiff  has  been  prosecuted  by  the  defendant, 
either  criminally  or  in  a  civil  suit. 

2.  That  the  prosecution  is  at  an  end;  and  generally  if  not 
universally,  that  it  terminated  in  ftivor  of  the  plaintiff, 

3.  That  it  was  instituted  maliciously  and  without  prob- 
able cause. 

4.  That  the  plaintiff  has  sustained  damages  thereby.'* 

§  687.  Measure  of  Damages. — The  measure  of  damages 
in  such  cases,  is  a  full  indemnity  to  the  plaintiff  for  all  the 
losses  sustained,  including  the  peril  of  his  life  and  liberty,  and 
injury  to  his  reputation,  feelings  and  person,  according  to  the 
character  of  the  prosecution,  and  all  expenses  incurred  in 
defense  of  the  original  suit  or  prosecution,  and  even  extraor- 
dinary expenses,  as  attorney's  fees,  incurred  in  the  defense." 

Besides  these  elements  of  injury  for  which  the  plaintiff 
should  recover   damages,   the  jury   in   such   cases   may,   on 

^*See,  Jones  v.  Gwynn,  10  Mod.,  148;  Saville  v.  Roberts,  1  Salkeld,  14; 
Griffin  V.  Chubb,  7  Tex.,  603;  Hall  v.  Suydam,  6  Barb.,  83;  Jacks  v.  Stimp- 
son,  13111.,  701;  Kendrick  v.  Cypert,  10  Humph.,  291;  Greenwade  v.  Mills, 
31  Miss.,  464;  Pellenz  v.  Bullerdick,  13  La.  An.,  274;  Accessory  Transit  Co. 
V.  McCerren,  13  La.  An.,  214;  Potter  v.  Scale,  8  Cal.,  217;  Scofield  v.  Ferris, 
47  Penn.,  194;  Davis  v.  Cook.  3  la.,  539;  Wheeler  v.  Nesbit,  24  How.  (U.  S.), 
544;  Foshay  v.  Ferguson,  2  Denio.,  617;Madon  v.  McGinnis,  7  Mon.,  371; 
MitcheU  v.  Mallingly,  1  Met.  (Ky.),  237. 

'7  Thompson  v.  Mussey,  3  Greenlf.,  305;  Tripp  v.  Thomas,  3  Bam.  &  Cres., 
427;  Sandback  v.  Thomas,  1  Stark.,  306;  Gould  v.  Bennett,  2  M.  &  Rob., 
171;  Doe  v.  Davis,  1  Esp.,  358;  Senclair  v.  Eldred,  4  Taunt.,  7;  Webber  v. 
Nicholas,  Ryan  &  M.,  417;  2  Greenlf.  Ev.,  §456;  Saville  v.  Roberts,  1  Salk., 
14;  Closson  V.  Staples,  42  Vt..  209;  Sears  v.  Hathaway,  12  Cal.,  277;  Tally 
V.  Corrie,  16  L.  T.  (N.  S.),  796;  Kindred  v.  Stitt,  51  lU.,  401.  There  is  no 
criterion  for  the  assessment  of  damages  but  they  must  not  be  excessive.  Wal- 
ker V.  Martm,  52  111.,  347;  Springer  v.  Wise,  2  Disney  (0.),  39;  Sheldon  v. 
Carpenter,  4.  N.  Y.,  578;  Bonesteel  v.  Bonesteel,  30  Wi.j.,  511. 


MALICIOUS  PROSECUTION.  545 


Mitigation. 


general  principles  applicable  to  the  measure  of  damages  in 
actions  for  malicious  injuries,  go  beyond  these  actual  damages, 
and  allow  exemplary  damages  as  an  example  and  punishment 
to  the  defendant,  where  such  damages  are  recognized  as  pro- 
per." And  in  a  recent  case,  a  verdict  of  $1,700  damages  for 
a  malicious  arrest  and  prosecution,  was  held  not  to  be  exces- 
sive in  the  absence  of  any  proof  of  justification.'' 

So,  where  the  former  suit  was  on  a  bill  of  exchange  for  $4,000, 
which  had  been  paid,  but  an  attachment  was  sued  out  in  the  suit, 
under  which  the  property  of  the  drawer,  of  great  value,  was  held 
four  months,  when  it  was  released  only  by  giving  a  bond  there- 
for, and  the  jury  gave  §15,000  damages;  and  no  misconduct 
on  the  part  of  the  jury  was  claimed,  and  they  were  not  charged 
or  shown  to  have  acted  under  the  influence  of  passion  or  pre- 
judice, the  court  refused  to  disturb  the  verdict.'"  And  where 
the  damages  were  assessed  at  £10,000,  in  such  a  case,  the  court 
refused  to  interfere." 

§  688.  Mitigation. — Circumstances  of  suspicion  that  the 
plaintiff  was  guilty  of  the  crime  for  which  he  was  prosecuted, 
it  has  been  held,  are  matters  in  mitigation  of  damages." 
According  to  the  weight  of  authority,  if  the  plaintiff  claims 
damages  for  an  injury  to  his  reputation,  evidence  of  his  bad  char- 
acter, especially  in  respect  to  the  charges  made  in  the  prosecu- 

'^  See,  ante,  Chap.,  6. 

'9 Reno  V.  Wilson,  49  111.,  95  (1868).  But  a  judgrment  of  $20,000  in  the 
court  below,  on  account  of  imprisonment  in  a  jaU  for  nine  clays,  was  held 
excessive.     Walker  v.  Martin,  62  lU.,  347, 

«>  Weaver  v.  Page,  6  Cal.,  681, 

"  Luth  v.  Pope,  2  W.  BL,  126.  In  Mississippi,  it  has  been  held,  that  the 
■Jury  may  in  such  cases,  consider  the  pecuniary  ability  of  the  defendant. 
Whitfield  V.  Westbrook,  40  Miss.,  311.  But  this  doctrine  is  not  generally 
adopted  in  torts,  and  the  preponderance  of  authorities  -would  seem  to  be 
against  it.    See,  ante,  §  §  120,  609. 

»»  Hitchcock  V.  North,  5  Rob.  (La.),  328;  Bacon  v.  Town,  4  Cush.,  217; 
Martin  v.  Hardesty,  27  Ala.  (N.  S.),  458;  Rodrique  v.  Tadmire,  2  Esp.,  721. 
See,  also,  Thomas  v.  RusseU,  9  Exch.,  764;  23  L.  J.  Ex.,  233. 

35 


546  THE  LAW  OF  DAMAGES. 


Conclusion. 


tion,  is  admissible  as  a  circumstance  to  rebut  the  presumption 
of  malice." 

The  bad  reputation  of  the  plaintiff  is  admissible  in  evidence, 
in  this  action,  not  only  to  rebut  the  presumption  of  the 
want  of  the  probable  cause,  but  also  in  mitigation  of  damages. 
"The  same  facts,  which  would  raise  a  strong  suspicion,  in  the 
mind  of  a  cautious  and  reasonable  man,  against  a  person  of 
notoriously  bad  character  for  honesty  and  integrity,  would 
make  a  slighter  impression  if  tended  to  throw  a  charge  of  guilt 
upon  a  man  of  good  reputation.'"'  And  if  the  plaintiff  in 
this  action  is  justly  chargeable  with  moral  guilt  of  the  crime 
for  which  he  was  prosecuted,  and  escaped  conviction  merely 
on  technical  grounds,  this  is  a  matter  in  mitigation  of  damages, 
and  if  he  could  recover  anything,  it  should  be  no  more  than 
actual  damges.'^' 

§  689.  Conclusion. — In  conclusion  it  may  be  remarked 
that  the  question  of  the  want  of  probable  cause  and  malice,  is 
a  question  for  the  jury  to  determine  under  all  the  circumstances 
of  the  case,  and  that  malice  may  be  inferred  from  want  of 
probable  cause,  but  not  necessarily."  But  the  question  of 
probable  cause,  upon  established  facts,  and  especially  on  the 

^  Israel  v.  Brooks,  23  111.,  575;  Martin  v.  Hardesty,  supra;  Downing  v. 
Butcher,  2  M.  &  R.,  374;  Smith  v.  Hyndman,  10  Gush.,  554.  See,  also,  the 
English  doctrine,  Mayne  on  Dam.,  261,  and  authorities  cited;  Goodrich 
V.  Warner,  21  Conn.,  432;  Beal  v.  Robeson,  8  Ired.,  276. 

=s  Shaw,  C.  J.,  in  Bacon  v.  Town,  4  Gush..  217;  Fitzgibbon  v.  Brown,  43 
Me.,  169.  See,  also,  Rodrique  v.  Tadmire.  2  Esp.,  721;  Wood  v.  U.  S.,  16 
Pet.,  342;  2  Gr.  Ev.,  §  458.  But,  see,  Newsam  v.  Carr,  2  Stark,  69.  In 
Bacon  v.  Town,  supra,  the  learned  Ghief  Justice  further  observes:  "Proba- 
ble cause  does  not  depend  on  the  actual  state  of  the  case  in  point  of  fact, 
but  upon  the  honest  and  reasonable  belief  of  the  party  commencing  the 
prosecution."    See,  also,  James  v.  Phelps,  11  Aid.  &  El.,  483. 

=«  Sears  v.  Hathaway,  12  Gal.,  277. 

=7  Newell  V.  Downs,  8  Blackf.,  523;  Long  v.  Rodgers,  19  Ala.,  327; 
Wheeler  v.  Nesbit,  24  How.,  545;  Gooper  v.  Waldron,  50  Me.,  80,  where  it 
was  held  ih&t  probable  cause,  upon  established  facts,  was  a  question  of  law; 
Smith  V.  Hyndman,  10  Gush.,  554. 


MALICIOUS  FEOSECUTIOK  547 

Defense. 

plaintiff's  evidence,  is  a  question  of  law,  for  the  court  to 
determine."  Want  of  probable  cause  can  never  be  inferred 
from  any  degree  of  express  malice.'"  And  it  has  been  held 
that  want  of  probable  cause  is  for  the  court;  that  of  malice, 
for  the  jury  to  determine." 

§  690.  Defense. — The  existence  of  a  probable  cause  for 
the  prosecution  would  be  a  defense  to  the  action;  and  this 
must  be  that  reasonable  and  probable  cause  which  exists  in  the 
mind  of  the  party  at  the  time  of  the  act  in  question.^'  And 
those  facts  and  circumstances  alone  should  be  considered, 
which  were  known  to  the  prosecutor  at  the  time.  The  ques- 
tion is  not  whether,  in  case  of  a  criminal  prosecution,  the 
accused  was  guilty  or  innocent,  but  as  to  the  honest  and  reason- 
able belief  of  the  prosecutor,  concerning  the  guilt  or  inno- 
cence." 

Mr.  Hilliard,  in  his  valuable  work  on  Torts,  remarks: 
"  Probable  cause  for  instituting  a  criminal  prosecution  is  held 
to  be  such  a  state  of  facts,  known  to  and  influencing  the  prose- 
cutor, at  would  lead  a  man  of  ordinary  caution  and  prudence, 
acting  conscientiously,  impartially,  reasonably  and  without 
prejudice,  upon  the  facts  within  the  parties'  knowledge,  to 
believe  or  entertain  an  honest  and  strong  suspicion  that  the 


=9  Stevens  v.  Fassett,  27  Me.,  266;  Marks  v.  Gray,  42  Me.,  86;  Taylor  v. 
Godfrey,  36  Me.,  525;  Greenwade  v.  Mills.  31  Miss.,  464;  Stone  v.  Crocker, 
24  Pick.,  81;  Carpenter  v.  Sheldon,  5  Sandf.,  77;  Buckley  v.  Smith,  2  Duer, 
261. 

30  Johnston  v.  Sutton,  1  T.  R.  (Dum.  &  East.),  544;  Mitchel  v.  Jenkins,  5 
Barn.  &  Adolph.,  594;  HaU  v.  Suydam,  6  Barb.,  83;  WiUiams  v.  Taylor,  6 
Bing.,  186. 

3'  Page  v.  Gushing,  38  Me.,  523.  "Malice  and  want  of  probable  cause 
must  also  be  proved,  and  the  amount  of  damages  given  by  the  jury  will 
always  be  greatly  influenced  by  the  species  of  evidence  afforded  upon  this 
point."    Mayne  on  Dam.,  260. 

^  Delegal  v.  Higby,  3  Bing.,  950;  James  v.  Phelps,  11  Add.  &  Ell.,  489. 

33  Hall  V.  Suydam,  6  Barb.,  83;  Barton  v.  Kavanaugh,  12  La.  An.,  332. 


548  THE  LAW  OF  DAMAGES. 

Defense. 

person  accused  is  guilty.'"*  So,  the  fact  that  there  has  Leen 
a  former  trial  for  the  same  cause  of  action,  as  for  instance  an 
action  for  slander,  for  injury  to  the  reputation  by  the  accusa- 
tion made  for  the  purpose  of  procuring  the  arrest  at  the  time 
when  it  was  made,  is  a  bar  to  the  recovery  for  that  cause,  in 
this  action." 

34  Hill.,  on  Torts,  451,  §  18,  citing,  Bacon  v.  Towne,  4  Cush.,  217;  Rice  v. 
Ponder,  7  Ired.,  390;  Rickey  v.  McBean,  17  111.,  63;  Jacks  v.  Stimpson,  13 
111.,  701;  Foshay  v.  Ferguson,  2  Denio,  617;  Ash  v.  Marlow,  20  Ohio,  119; 
Titzgibbon  v.  Brown,  43  Me.,  169;  Wheeler  v,  Nesbit,  24  How.  (U.  S.),  544; 
Scanlan  v.  Cowley,  2  Hilt.,  489;  Center  v.  Spring,  2  la.,  393;  Lacy  v. 
MitcheU,  23  Ind.,  67. 

35  Sheldon  v.  Carpenter,  4  N.  T.  (Comst.),  578. 


LIBEL  AND  SLAEDEK.  549 


General  Kule  and  Elements  of  Damages. 


CHAPTER  XXY. 


LIBEL  AND  SLANDEE. 

Section  691.  General  Rule  and  Elements  of  Damages. 

692.  Contribution  between  the  Wrongdoers. 

693.  Mitigation. 

694.  Aggravation  and  Exemplary  Damages. 

695.  Pecuniary  Condition  of  the  Defendant. 

696.  Amount  of  damages. 

§  691.    General  Rule  and  Elements  of  Damages.— 

In  this  action,  if  the  pleadings  and  proofs  warrant,  the  plain- 
tiff may  recover  damages  for  all  actual  losses  and  injuries, 
including  mental  suffering,  indignity,  public  disgrace  or  other 
actual  discomfort.'  And  the  jury  may  consider  the  probable 
future  as  well  as  the  actual  past  damages;'  and  all  expenses  to 
which  the  plaintiff  has  been  subjected,  by  being  compelled  to 
come  into  court  to  vindicate  his  character.'  So,  the  plaintiff 
may  recover  damages  for  the  loss  of  a  marriage;'  or  the  loss 
of  a  sale  of  real  estate; '  or  loss  of  customers  in  his  profession 

»  Fry  V.  Bennett,  4  Duer.,  247;  Swift  v.  Dickerman,  31  Conn.,  285;  Dufort 
V.  Abadie,  23  La.  An.,  280;  Fuller  v.  Fenner,  16  Barb.,  333.  But  see  contra, 
as  to  mental  distress,  TerwiUiger  v.  Wands,  17  N.  Y.,  54;  Wilson  v.  Goit,  17 
N.  Y.,  442. 

'  True  V.  Plumley,  36  Me.,  466. 

3  Hicks  V.  Foster,  13  Barb.,  663. 

4  Hunt  V.  Jones,  Cro.  Jac,  499. 
s  Starkie  on  Sland.,  56. 


550  THE  LAW  OF  DAMAGES. 

Contribution  between  Wrongdoers. 

or  business/  and  the  like;^  or  for  the  desertion  of  a  chapel," 
or  of  a  theatre,"  or  loss  of  a  situation  or  business,  in  conse- 
quence of  the  libel  or  slander,'" 

§  692.  Contribution  between  Wrongdoers.— The  rule, 
that  there  can  be  no  contribution  between  joint  wrongdoers, 
was  applied  in  an  action  by  a  journalist  who  sought  to  recover, 
upon  a  contract  of  indemnity,  from  the  writer  of  a  libel  pub- 
lished by  him  in  his  journal,  where  it  was  held  that  such  aeon- 
tract  would  not  avail  to  protect  the  publisher,  though  renewed 
after  the  publication  of  the  libel,  and  in  consideration  that  the 
publisher  would  not  disclose  the  name  of  the  writer  on  its  being 
demanded  by  the  victim  of  the  libelous  article,  and  that  no 
recovery  could  be  had  thereon,  as  there  can  be  no  contribution 
between  joint  wrongdoers."  So  also,  it  has  been  held,  that 
the  proprietor  of  a  newspaper,  convicted  and  fined  for  the  pub- 
lication of  a  libel  in  his  paper,  inserted  without  his  knowledge 
or  consent  by  the  editor,  cannot  recover  against  the  editor  the 
damages  sustained  by  such  conviction."* 

In  case  of  express,  wanton,  unmitigated  malice  or  ill  will 
on  the  part  of  the  defendant,  exemplary  or  punitory  damages 
may  be  recovered."  But  plaintiff,  under  the  general  issue, 
cannot,  in  aggravation  of  damages,  introduce  evidence  in  chief 


6  Sanderson  v.  Caldwell,  45  N.  Y.,  398  (1871). 

7  See,  also,  Evans  v.  Harris,  38  Eng.  L.  &  E.,  347;  Tilk  v.  Parsons,  2  C. 
&  P.,  201;  Ashlej'  v.  Harrison,  1  Esp.,  48. 

8  Hartley  v.  Herring,  8  T.  R.,  130. 

sAsUey  v.  Harrison,  supra;  2  Greenlf.  on  Ev.,  §  420.  See  damages  in 
Libel  and  Slander;  I  HiU  on  Torts,  Ch.  15;  1  Stark  on  Slan.,  195,  202. 

'°  Jackson  v.  Happerton,  17  C.  B.,  829. 

"Atkins  V.  Johnson,  43  Vt.,  78. 

"Colbum  V.  Patmore,  1  Comp.,  Mees.  &  Rose.,  73. 

'3  Snyder  v.  Fulton,  34  Md.,  128  (1870);  Miles  v.  Harrington,  8  Kans., 
425  (1871);  Gilbreath  v.  Allen,  10  Ired.,  67;  Kenny  v.  Hosea,  2  Harring., 
397;  Fry  v.  Bennett,  4  Daer.,  247;  Conner  v.  Noonan,  4  Wis.,  231;  Arm- 
strong V.  Pierson,  5  Iowa,  317;  Buckley  v.  Knapp,  48  Mo.,  152;  Bownin  v. 
Elliott,  19  La.  An.,  322;  1  Hill,  on  Torts,  429. 


LIBEL  AND  SLANDER  551 


Mitigation. 


of  good  character  but  may  rebut  evidence  of  bad  character 
offered  by  the  defendant." 

§  693.  Mitigation.— From  the  weight  of  authority,  the 
general  bad  character  of  the  plaintiff,  may  be  shown  in  miti- 
o-ation  of  damaijes."  This  broad  doctrine  has,  however,  been 
denied.  But  the  authorities  are  agreed  that  the  defendant 
may  in  mitigation  of  damages  attack  the  general  character  of 
the  plaintiff,  in  respect  to  the  subject  matter  of  the  charge." 
Thus,  for  words  spoken  or  published  against  the  chastity  of 
the  plaintiff,  it  may  be  shown  in  mitigation  of  damages  that 
the  plaintiff  has  so  destroyed  her  character,  by  her  own  lewd 
and  dissolute  conduct,  as  to  have  sustained  little  or  no  injury.'* 
But  proof  of  particular  dishonest  and  corrupt  acts  of  the 
plaintiff,  entirely  disconnected  with  the  offense  charged  in  the 
libel  or  slander,  is  inadmissible."  So  the  defendant  may  show 
in  mitigation  of  damages,  as  in  actions  for  assault  and  battery, 
tliat  he  was  provoked  to  give  utterance  to  the  slanderous 
words  by  the  conduct  of  the  pUiintiff  at  or  near  the  time  when 
the  words  were  uttered,  and  that  such  provocation  was  the 
immediate  cause  of  uttering  the  same;"  or  that  the  words  were 
spoken  in  the  heat  of  passion  or  under  excitement."     And  in 

's  Martin  v.  Hooker,  7  Coldw.  (Tenn.),  130  (1869). 

'S  Armstrong  V.  Pierson,  8  la.,  29;  Sayre  v.  Sayre,  1  Dutch.,  235;  Smith  v. 
Smith.  8  Ired.,  29;  Root  v.  King,  7  Cow.,  613;  Baily  v.  Hide,  3  Conn.,  463; 
Fletcher  v.  Burrows,  10  la.,  557;  Adams  v.  Smith,  58  111.,  417;  Stone  v. 
Varney,  7  Met.,  86;  2  Gr.  Ev.,  §424;  Stark,  on  Slan.,  88,  et  seq. 

'7  Wilson  V.  Noonan,  27  Wis.,  598  (1871);  Wright  v.  Schroeder,  2  Curtis, 
548;  McNutt  V.  Young,  8  Leigh.,  542;  Young  v.  Bennett,  4  Scam.,  43; 
McCabe  v.  Platner,  6  Blackf.,  405;  Saunders  v.  Johnson,  6  Blackf.,  50;  Leon- 
ard V.  AUen,  11  Cush.,  241. 

'8  Flint  V.  Clark,  13  Conn.,  361. 

'9  Wilson  V.  Noonan,  27  Wis.,  598;  Fountain  v.  West,  23  la.,  9;  Fisher 
V.  Tice,  20  la.,  479. 

=o  Freeman  v.  Tinsley,  50  111.,  497  (1870);  Miles  v.  Harrington,  8  Kas., 
425  (1871);  Moore  v.  Clay,  24  Ala.  (N.  S.),  235;  McChntock  v.  Crick,  4  la., 
453;  Watts  V.  Frazer,  7  Aid.  &  Ell.,  223. 

«  Monsler  v.  Harding,  33  Ind.,  176. 


552  THE  LAW  OF  DAMAGES. 


Mitigation. 


an  action  for  a  libel,  where  the  plaintiff  has  also  been  guilty  of 
a  libel  against  the  defendant,  if  so  recent  as  to  aftbrd  reason- 
able presumption  that  the  libel  by  the  defendant  was  published 
under  the  influence  of  passion  thus  excited,  this  is  a  proper 
matter  in  mitigation."^ 

So,  on  t]ie  question  of  damages,  the  defendant  may  show  that 
from  the  conduct  of  the  plaintiff,  in  attempting  to  commit  the 
crime,  or  the  plaintiff's  fault,  he  had  reason  to  believe  at  the 
time  of  speaking  the  words,  and  when  he  pleaded  the  justifi- 
cation, that  the  charges  were  true,"  or  that  the  charges  were 
made  under  a  mistake  which  was  forthwith  retracted,"  or  that 
the  libelous  statement  was  communicated  to  him  by  a  third 
person,"  or  that  the  defendant  copied  the  same  from  another 
paper  giving  tlie  authority,  or  that  he  was  demented  or  partly 
insane  at  the  time,  or  a  monomaniac  upon  the  subject  matter 
of  the  charge.''  And  where  at  the  time  of  speaking  the  words, 
the  mind  was  besotted  by  a  long  course  of  dissipation,  and  the 
defendant's  character  so  depraved  that  no  one  who  knew  him 
would  pay  any  attention  to  what  he  might  utter,  or  give  any 
credence  to  what  he  might  state,  it  was  held  admissible  to 
show  these  facts;  and  an  idiot  or  lunatic,  no  matter  from  what 
cause  he  became  so,  cannot  be  guilty  of  malice."     So  the 

^  Child  V.  Homer,  13  Pick.,  503.  See.  also,  Stanley  v.  Webb,  21  Barb., 
148;  1  Hill,  on  Torts,  506,  et  seq,  Jamigan  v.  Fleming,  43  Miss.,  710  (1870); 
Finnity  v.  Sipper,  2  Camp.,  76;  May  v.  Brown,  3  B.  &  C,  113;  Tarpley  v. 
Blably,  2  Bing.  (N.  C),  437. 

=3  Shoultz  V.  Miller,  1  Ind.,  544;  Hayward  v.  Foster,  16  Ohio,  88;  1  Hill, 
on  Torts,  707;  Lamed  v.  Buffington,  3  Mass.,  546. 

^'^  Bradley  v.  Heath,  12  Pick.,  163.  Also,  there  may  be  shown  a  want  of 
express  malice,  or  a  retraction  of  the  slander.     Story  v.  Wallace,  60  111.,  51. 

^sDuncome  v.  Daniel,  2  Jur.,  32;  Maitland  v.  Goldney,  2  East.,  426; 
Haynes  v.  Leland,  29  Me.,  233. 

^  Dickenson  v.  Barber,  9  Mass.,  225;  Fisher  v.  Tice,  20  la.,  479;  2  Greenlf. 
Ev.,  §  424;  Brown  v.  Brooks,  3  Ind.,  518;  Mausler  v.  Harding,  33  Ind..  176. 
So  a  subsequent  retraction  of  the  libel  by  the  defendant  may  be  read  in  evi- 
dence to  mitigate  the  damages.  Hotchkiss  v.  OUphant,  2  Hill  (N  .Y.),  510; 
Kent  V.  Bonzey,  33  Me.,  439;  Darling  v.  Banks,  14  111.,  46. 

^7  Gates  V.  Meredith,  7  Ind.,  440;  3  Gr.  Ev.,  §  6,  and  notes.  Rev.  ed.  Bat 
intoxication  is  no  defense  to  an  action.  Reed  v.  Harper,  25  la.,  87.  See, 
also,  ante,  §  199. 


LIBEL  AND  SLANDER.  553 


Aggravation  and  Exemplary  Damages. 


defendant  may  prove  any  circumstances  tending  to  show  that 
the  publication  was  not  maliciously  made,  or  wantonly  manu- 
factured for  the  occasion  but  had,  what  appeared  to  the  pub- 
lisher to  be,  truth  for  a  basis;''  or,  that  he  had  reason  to 
believe  it  to  be  true." 

§  C94.  Aggravation  and  ExempLiry  Damages.  — 
"Where  actual  malice  is  shown  in  an  action  for  slander,  the 
jury  may  always  give  exemplary  damages.'"  And  they  may 
take  into  consideration  the  pecuniary  circumstances  of  the 
defendant  and  his  position  and  influence  in  society,  as  well  as 
the  character  of  the  plaintiff,  at  least  as  we  have  seen,  in 
respect  to  the  subject  of  the  slander,  and  also  any  reiteration 
of  the  slander  at  different  times,  and  to  different  persons,  and 
also  any  effort  which  the  defendant  has  made  to  have  the 
plaintiff  indicted;  and  if,  from  all  the  circumstances,  it  is  appa- 
rent that  the  slander  was  wanton  and  malicious,  they  may  give 
exemplary  damages."  So,  in  an  action  for  libel  or  slander  it 
is  proper  to  show  the  rank  and  condition  in  life  of  the  plaintiff, 
in  aggravation  of  damages,  and  the  defendant  may  avail  him- 
self of  such  evidence,  so  far  as  it  is  favorable  therefor,  in  mit- 
igation.'^ 

«8  Stanley  v.  Webb,  21  Barb.,  148;  Bamland  v.  Eidson,  8  Gratt.,  27; 
Sperry  v.  WUcox,  1  Met.,  267;  Upliam  v.  Dickinson,  50  111.,  97  (1869). 

=9  Huson  V.  Dale,  19  Mich.,  17,  reviewing  many  cases;  Fountain  v.  West, 
23  la..  9;  Mayo  v.  Temple,  16  la.,  585. 

30  King-ht  V.  Foster,  39  N.  H.,  576 ;  Armstrong  v.  Pierson,  8  la.,  29;  Gard  v. 
Risk,  11  Ind.,  156;  Daly  v.  Van  Benthusen,  3  La.  An.,  69. 

3' Hosley  v.  Brooks,  20  111.,  115;  Peltier  v.  Mict,  50  111.,  511;  Lewis  v. 
Chapman,  19  Barb.,  250;  Humphreys  v.  Parker,  52  Me.,  502;  Harbison  v. 
Shook,  41  lU.,  142. 

32  Peltier  v.  Mict,  50  111.,  511;  Klumph  v.  Dunn,  66  Pa.  St.,  141;  Burnett 
V.  Hyde,  6  Conn.,  24;  Lamed  v.  Buffington,  3  Mass.,  546,  General  good 
character  of  the  plaintiff  cannot  be  given  in  evidence  in  aggravation  of  dam- 
ages, or  otherwise,  except  to  rebut  evidence  offered  by  the  defendant  in  rela- 
tion thereto,  for  the  presumption  is  in  favor  of  the  good  character  of  the 
plaintiff.    Mayne  on  Dam..  274;  Guy  v.  Gregory,  9  C.  &  P.,  687. 


654  THE  LAW  OF  DAMAGES. 

Pecuniary  Condition  of  Defendant. 

§  695.     Pecuniary  Condition  of  the  Defendant.  — 

Whether  the  pecuniary  circumstances  of  the  defendant  may 
be  shown  in  actions  for  torts  generally,  in  aggravation  of  dam- 
ages, is  a  question  on  whicli  the  authorities,  as  we  have  seen, 
are  divided.  In  actions  for  shmder  and  libel,  it  has  been 
maintained  that  the  defendant's  pecuniary  circumstances  were 
immaterial."  On  the  other  hand,  perhaps  a  preponderance  of 
authorities  maintain  the  doctrine,  in  such  cases,  that  the 
plaintiff  may  show  in  aggravation  of  damages  the  pecuniary 
condition  of  the  defendant,  especially  where  the  plaintiff  is 
entitled  to  exemplary  damages;  although  this  doctrine  in  its 
application  to  such  cases,  is  sometimes  made  to  rest  upon  the 
reason  that  wealth  gives  social  rank  and  influence  to  the 
possessor,  and  therefore  greater  damage  would  ordinarily  be 
sustained  by  his  libel  or  slander.^* 

33  Morris  v.  Barker,  4  Haring.,  520;  Ware  v.  Cartlege,  24  Ala.,  622;  Case 
V.  Marks,  20  Conn.,  248.  See,  also,  ante,  §  120,  and  notes,  where  the  doc- 
trine is  considered.  1  Hill,  on  Torts,  Chap.  15;  James  v.  Buddington,  8  Car. 
&P.,  589. 

^  Lewis  V.  Chapman,  19  Barb.,  252;  16  N.  Y.,  369;  Adcock  v.  Marsh,  8 
Ired.,  360;  Fry  v.  Bennett,  4  Duer,  247;  Buckley  v.  Knapp,  48  Mo.,  152; 
Hosley  V.  Brooks,  20  111.,  115,  where  the  court  say  that  "the  wealth  of  the 
defendant  is  an  element  in  his  social  rank  and  influence,  and  therefore  tends 
to  show  the  extent  of  the  injury  from  his  slander;"  2  Gr.  Ev.,  §  269.  Wag- 
ner, J.,  in  Buckley  v.  Knapp.  supra,  places  the  reason  on  the  ground  of  pun- 
ishing the  defendant.  He  remarks:  "In  all  cases  where  vindictive  damages 
are  allowed  it  is  upon  the  theory  that  the  defendant's  conduct  has  been  such 
that  he  deserves  to  be  punished,  and  they  are  given  with  the  view  of  measuring 
out  punishment  to  him  as  well  as  of  awarding  compensation  to  the  plaintifi". 
When  we  come  to  this  conclusion,  it  seems  to  me  that  it  logically  ibllows  that 
the  inquiry  as  to  the  pecuniary  resources  of  the  defendant  becomes  mate- 
rial, for  what  would  be  severe  punishment  to  a  very  poor  man,  would  be  of 
no  consequence  to  a  rich  one."  See,  also,  Peltier  v.  Mict,  50  111.,  511; 
Humphreys  v.  Parker,  52  Me.,  502.  See,  as  to  exemplary  damages  gen- 
erally, ante,  §  73,  et  seq.  Also,  arguments  against  the  doctrine  that  the 
wealth  of  the  defendant  should  aggravate  damages  in  torts  generally, 
ante,  §  §  120,  609.  See,  also.  Hunt  v.  Chicago  &  N.  W.  R.  Co.,  26  la.,  363; 
Guengerech  v.  Smith,  34  Id.,  348;  Kamey  v.  Paisley,  13  Id.,  89.  But  see, 
in  support  of  the  views  in  Buckley  v.  Knapp,  supra,  case  of  Belknap  v. 
Boston  &  Maine  R.  Co.,  49  N.  H.,  358;  2  Gr.  Ev.,  §  269. , 


LIBEL  AND  SLANDER.  555 


Amount  of  Damages. 


§  696 .  Amount  of  Damages.— Courts  will  not  interfere 
witli  verdicts  on  account  of  excessiveness,  unless  there  is 
ground  for  belief  that  the  jury  was  influenced,  by  passion, 
prejudice,  or  corruption.  Thus  on  a  charge  of  adultery,  where 
the  plaintiff  was  superintendent  of  an  almshouse,  and  the 
defendant  a  man  of  property,  and  the  words  were  spoken  at  a 
town  meeting  in  a  discussion  of  the  matter  of  appointment  of 
a  new  superintendent,  a  verdict  therefor  in  the  sum  of  $700 
was  sustained.'"  And  a  verdict  of  $5,000,  for  a  libel  charging 
unchastity,  exemplary  damages  under  the  circumstances  of 
the  case  being  allowable,  was  sustained."  So  the  court  refused 
to  set  aside  or  reduce  a  verdict  of  $591,  in  a  case  of  a  charge 
of  adultery  against  an  unmarried  female,  who  was  an  assistant 
in  an  almshouse.''  So  in  an  action  by  a  female  teacher, 
against  a  man  of  wealth  and  influence,  for  charging  her  with 
want  of  chastity,  a  verdict  of  $1,400  was  sustained.'"  And,  a 
verdict  of  $500,  in  an  action  for  charging  the  plaintiff  with 
stealing  a  horse,"  and  $2,736  for  charging  the  plaintiff  with 
perjury,"  and  $334  for  charging  a  female  with  adultery," 
were  severally  held  not  to  be  excessive,  so  as  to  authorize  the 
court  to  set  aside  or  reduce  the  verdicts. 


36  Shute  V.  Barrett,  7  Pick.,  82. 

37  Buckley  v.  Knapp,  48  Mo.,  152. 

38  Shute  V.  Barrett,  7  Pick.,  82. 

39  Bodwell  V.  Osgood,  3  Pick.,  379. 

40  Teagle  v.  Deboy,  8  Blackf.,  134. 

41  Saunders  v.  Johnson,  6  Blackf.,  SI. 
♦»  Ross  V.  Ross,  5  B.  Mod.,  20. 


656  THE  LAW  OF  DAMAGES. 


Remedy  for,  at  Common  Law. 


CHAPTEE  XXYI. 


SEDUCTION  AND  CRIMIKAL  CONVERSATION. 

Section  697.  Remedy  for,  at  Common  Iiaw. 

698.  Damages— General  Bules. 

699.  Aggravation. 

700.  Mitigation  and  Defense. 

702.  Amount  of  Verdict. 

703.  Seduction  of,  and  Enticing  Away  a  "Wife. 

§  697.  Remedy  for,  at  Common  Law.— It  is  a  well 
established  doctrine  of  common  law,  that  an  action  cannot  be 
maintained  by  the  female  who  has  been  seduced,  against  her 
seducer  for  the  seduction,  she  being  in  pari  delicto.  The 
woman  had  no  remedy;  nor  was  there  any  direct  remedy  by 
the  parent  or  guardian,  or  master,  for  the  injury.'  The  action 
could  only  be  maintained  by  the  parent,  guardian,  or  other 
person  standing  in  loco  parentis  to  the  person  seduced,  or 
by  the  husband  for  the  seduction  of  his  wife,  or  by  the 
master  for  the  seduction  of  a  servant;  and  this,  only  when 
the  relation  of  master  and  servant  existed  actually  or  construc- 
tively, at  the  time  of  the  seduction.  The  loss  of  services  per 
quod  servitium  amisit,  was  the  gist  of  the  action.  The  claim 
for  damages  was  based  upon  a  legal  fiction  of  loss  of  service; 
and  if  there  was  no  loss  of  service  there  could  be  no  recovery." 

»  3  Blk.  Com.,  140;  7  Conn.  Dig.,  318;  Mayne  on  Dam.,  284. 
'Grinnell  v.  Wells,  7  Man.  &  Gran.,  1033;   Ellington  v.  Ellington,  47 
Miss.,  329  (1872);  Gray  v.  Darland,  51  N.  Y.,  424  (1873). 


SEDUCTION  AND  CRIM.  CON.  557 


Damages— General  Kules. 


The  Statutes  of  some  of  the  states  have  given  the  right  of 
action  in  such  cases  to  the  injured  female,  so  that  now,  under 
the  wise  and  humane  provisions  of  these  statutes,  she  may- 
have  redress  in  such  cases.' 

§  G98.  Damages— General  Rules.— The  damages  in  such 
cases  embrace  every  loss  or  injury  that  flows  from  the  wrong- 
ful act,  such  as  loss  of  labor  or  services  or  wages,  as  the  case 
may  be,  domestic  peace  and  happiness,  injury  from  the  dis- 
grace cast  upon  the  party  or  the  family;'  pain  and  suffering, 
including  that  produced  by  an  abortion  procured  by  the 
defendant;  and  distress  and  anxiety  of  the  plaintiff.'  And  in 
England,  the  expense  of  maintaining  the  child,  as  well  as  the 
doctor's  fees,  are  allowed  to  be  included  in  the  damages;"  and 
all  necessary  expenses  incurred  thereby;'  and  the  jury  have 
been  allowed  to  consider  the  dishonor  of  the  plaintiff's  family 
and  their  injured  feelings." 

Nor  will  the  damages  be  restricted  to  actual  compensation; 
but  exemplary  damages  may  always  be  given,'  even  where 
the  action  is  at  common  law,  and  by  the  parent  or  other  per- 
son in  loco  parentis,  and  the  relation  of  master  and  servant 
exists  by  convention  only,  as  where  the  daughter  is  of  age.'" 
And  the  same  rule  applies  where  the  female,  under  a  statute, 
brings  the  suit  in  her  own  name;  or  where  the  suit  is  brought 

3  See.  Deady  &  Lane's  Code  of  Oregon,  page  111,  §  35;  Code  of  Iowa, 
§  2555  (1873). 

*  Kendrick  v.  McCrary,  11  Geo.,  603. 

s  Andrews  v.  Askey,  8  Car.  &  P.,  1;  Phelps  v.  Hoyle,  4  Gray  (Mass.), 
568.  And  illness  caused  by  threatened  exposure.  Knight  v.  Wilcox,  18  Barb., 
212,  doubted  in  s.  c,  14  N.  Y.,  413.  But  see,  Kendrick  v.  McCrary,  11  Geo., 
603;  Phelin  v.  Kenderdine,  20  Pa.  St.,  354. 

6  Terry  v.  Hutchinson.  3  L.  R.,  Q.  B.,  599;  9  B.  &  S.,  487. 

7  See  cases  cited  above;  also,  Klopfer  v.  Bromme,  26  Wis.,  372. 

8  Felkner  v.  Scarbet.  29  Ind.,  154;  Wilhoit  v.  Hancock.  5  Bush  (Ky.),  567. 

singersol  v.  Jones,  5  Barb.,  661;  Irwin  v.  Dearman,  11  East.,  23;  Edmon- 
son V.  MacheU,  2  T.  R.,  4;  BaU  v.  Bruce,  21  lU.,  161;  Bartley  v.  Richtmyer, 
4N.  Y.,  38. 

*»  Lipe  V.  Eisenlerd,  32  N.  Y.,  229;  Badgley  v.  Decker,  44  Barb.,  577. 


558  THE  LAW  OF  DAMAGES. 

Aggravation. 

by  the  parent  although  the  statute  authorizes  the  daughter  to 
sue  in  her  own  name." 

But,  it  has  been  held,  that  where  the  plaintiff  stands  only  hi 
loco  jparentis  to  the  seduced,  actual  loss  of  services  must  be 
shown,  and  merely  constructive  service  is  not  sufficient,'*  The 
action  however  may  be  maintained  by  the  plaintiif,  whenever 
the  female  seduced  is  de  facto  a  servant  of  the  plaintiff, 
although  there  is  neither  a  contract  of  service  nor  blood  rela- 
tion between  them.'^  But  mere  illicit  intercourse  does  not 
establish  seduction.  The  plaintiff  must  show  that  consent  was 
obtained  by  flattery,  promise  or  other  artifice,  used  by  the 
defendant.'* 

§  699.  Aggravation. — The  standing  of  the  plaintiff's 
family,"  the  pecuniary  circumstances  of  the  defendant,'*  the 
condition  in  life,  and  standing  of  both  parties,"  and  any  cir- 
cumstances, the  natural  consequences  of  the  principal  act, 
although  they  transpired  after  the  suit  was  commenced,  such 
as  expenses  of  lying-in,  may  be  shown  in  aggravation  of  dam- 
ages.'* So,  the  plaintiff  may  show  in  aggravation  of  damages 
that  the  defendant  succeeded  in  debauching  his  daughter  by  a 
promise  of  marriage,"  although  the  parent  cannot  recover  any 

"  Stevenson  v.  Belknap,  6  la.,  97.  See,  also,  Ingersol  v.  Jones,  5  Barb. 
(N.  Y.),  661. 

'=  Roberts  v.  Connelly,  14  Ala.  (N.  S.),  235;  South  v.  Dunston,  2  Watts., 
474. 

'3 Irwin  V.  Daman,  11  East.,  23;  Bennett  v.  Alcott,  2  T.  R.,  166;  Harper 
V.  Walker,  7  Barn.  &  C,  387;  Moran  v.  Daws,  4  Cow.,  412;  Manvell  v. 
Thomson,  2  Car.  &  P.,  303. 

M Delve  V.  Boardman,  20  la.,  446;  HiU  v.  Wilson,  8  Blackf.,  128;  Smith 
V.  Millburn,  17  la.,  30. 

'5  Keplinger  v.  Sherick,  1  Wright  (Ohio),  104. 

"*McAulay  v.  Birkhead,  13  Ired.  (N.  C),  28.  This  is  especially  the  case 
where  the  defendant  has  used  his  wealth  as  a  means  of  the  seduction .  Cowing 
v.  Cowing,  33  L.  J.,  149;  Forster  v.  Forster,  Id.,  150. 

'7  Rea  V.  Tucker,  51  111.,  110. 

'SHewett  v.  Prime,  21  Wend.,  79. 

"White  V.  Campbell,  13  Gratt.,  573. 


SEDUCTIOIS"  AND  CRIM.  CON.  559 

Mitigation  and  Defense. 

damages  for  a  breach  of  promise  of  marriage,  for  wliich  the 
daughter  alone  could  maintain  the  action.^"  If  the  defendant 
was  a  suitor  of  the  daughter  and  used  arts,  flattery,  etc.,  to 
accomplish  his  object,  these  may  be  shown;  but  it  is  held  in 
Iowa,  that  even  a  breach  of  promise  of  marriage  cannot  be 
shown  to  affect  the  measure  of  damages,  but  that  such  evidence 
is  only  permissible  to  show  artifice  and  deceit."  And  where 
the  seduction  is  accomplished  by  force  and  against  the  consent 
of  the  seduced,  this  is  a  matter  of  aggravation,  and  exemplary 
damages  in  such  cases  would  be  proper."'' 

§  700.  Mitigation  and  Defense.— The  defendant  may 
show  in  mitigation  of  damages,  previous  lewd  conduct  on  the 
part  of  the  seduced;  and  if  this  is  established,  the  parent  can 
only  recover  for  loss  of  services  during  pregnancy,  and  the 
necessary  expenses  caused  thereby."  But  the  fact  that  the 
female  consented  willingly,  or  even  seduced  the  defendant;  or 
the  fact  of  a  subsequent  marriage;  or  the  acquittal  or  convic- 
tion of  the  defendant  on  an  indictment  for  the  seduction,  will 
not,  either  or  all,  defeat  a  right  of  action;  but  they  go  only  in 
mitigation  of  damages.'*  It  is  held,  in  Wisconsin,  that  the 
defendant's  liability  to  a  criminal  prosecution  for  seduction,  and 
for  procuring  an  abortion,  are  not  to  be  considered  by  the  jury 
in  mitigation  even  of  exemplary  damages." 

So,  under  the  statute  of  Iowa,  an  unmarried  woman  of 
previously  unchaste  character  may,  in  an  action  for  her  own 
seduction,  recover  damages  for  loss  of  health,  and  all  other 

»°Phelin  v.  Kenderdine,  20  Penn.  St.,  354. 

"Stevenson  v.  Belknap,  6  la.,  97;  Grover  v.  Dill,  3  la.,  337.  But  see, 
Whitney  v.  Elmer,  60  Barb.  (N.  Y.),  250;  Mayne  on  Dam.,  284,  where  the 
English  cases  in  support  of  the  text  are  cited. 

«  Damon  v.  Moore,  5  Lans.  (N.  Y.),  454  (1871). 

=^ Fletcher  v.  Randell,  Auth.  N.  P.,  196.  See,  also,  Verry  v.  Watkins,  7 
C.  &  P.,  308;  Conway  v.  Nicol,  34  la.,  533. 

^McAulay  v.  Birkhead,  13  Ired  (N.  C),  28;  Eichar  v.  Kistler,  14  Pa.  St., 
282;  Mayne  on  Dam.,  285. 

"S  Klopfer  v.  Bromme,  26  Wis.,  372  (1870). 


560  THE  LAW  OF  DAMAGES. 


Mitigation  and  Defense. 


injuries  consequent  upon  the  act  of  seduction,  except  injuries 
to  or  loss  of  character;  and  the  character  of  the  plaintiff"  before 
the  seduction  may  he  shown  in  mitigation  of  damages,  but 
not  as  a  complete  defense.'"  The  right  of  the  parent  or  party 
in  loco  parentis,  to  maintain  the  action  in  that  state,  still  con- 
tinues as  at  common  law;  but  the  technical  and  absurd  rule, 
that  there  must  be  loss  of  services  as  a  basis  for  recovery,  is 
abolished.  And  in  an  action  by  the  parent,  the  character  of 
the  daughter  only  affects  the  amount  of  damages;  and  though 
she  be  unchaste  it  will  not  defeat  the  action.  "And  it  is  cer- 
tainly just  that  the  same  rule  should  apply  when  the  action 
is  brought  by  her  for  her  own  seduction.""  So  in  an  action 
by  the  father,  his  careless  indiff'erence  in  respect  to  the  daughter 
or  the  loose  principles  or  conduct  of  the  plaintiff"  or  the 
daughter,  were  held  to  be  matters  in  mitigation  of  damages.'' 
§  701.— Where  the  husband  connives  towards  the  wife's 
seduction  it  is  a  bar  to  an  action  by  him  against  her  seducer,'' 
So,  want  of  chasity  in  plaintiff"'s  wife  before  marriage  may  be 
shown,  and  also  that  the  unchaste  acts  of  the  wife  were  exclu- 
sively with  the  defendant.'"  And  if  the  plaintiff",  by  connivance, 
co-operates  to  produce  the  seduction  of  a  daughter  it  is  a 
defense  to  the  action."     In  such  a  case  the  plaintiif  would  be 

^  Smith  V.  Mnburn,  17  la.,  30. 

^  Opinion  of  Wright,  C.  J.,  Id.  See,  also,  Pence  v.  Dozan,  7  Bush  (Ky.), 
133.  So,  it  may  be  shown  by  the  plaintiff  in  corroboration  of  the  evidence  of 
a  seduction,  that  the  defendant  had  criminal  intercourse  with  the  seduced 
previous  to  the  act  for  which  damage  is  claimed,  and  even  where  it  is  cut  off 
by  the  statute  of  limitations.  Conway  v.  Nicol,  34  la.,  533;  Common- 
wealth V.  Meriam,  14  Pick.,  518;  Commonwealth  v.  Lahey,  14  Gray,  91; 
Gardner  v.  Madinea,  2  Yates,  466. 

=8  Zerfing  v.  Mourer,  2  Green  (la.),  520;  Dodd  v.  Morris,  3  Camp.,  519. 

=9Rea  v.  Tucker,  51  111.,  110  (1869).  Where  a  husband  is  knowingly 
the  cause  of  his  own  disgrace,  no  action  will  lie.  Smith  v.  Allison,  Bull., 
N.  P.,  27. 

30  Conway  v.  Nicol,  34  la.,  533. 

3'  Travis  v.  Burger,  34  Barb.,  614;  Hollis  v.  Wells,  3  Pa.,  Law  Jour.  Rep., 
169.    See,  also,  Fletcher  v.  Randell,  Auth.  N.  P.,  196. 


SEDUCTION  AND  CKIM.  CON.  661 

Amount  of  Verdict. 


in  pari  delicto^  and  on  general  principles  he  should  not  be 
permitted  to  recover.  This  was  the  ground  of  the  doctrine 
at  common  law  against  a  recovery  by  the  party  seduced.  But, 
under  the  statutes  of  several  states,  this  is  remedied  so  as  to 
allow  a  recovery  by  the  seduced  party;  and  hence,  although  the 
doctrine  of  jparticeps  criminis,  would  not  apply  where  the 
suit  was  brought  by  the  seduced,  it  would  apply  where  the 
parent  or  master  brought  the  action  for  his  injury.  So,  in  an 
action  by  a  husband  for  criminal  conversation  and  seduction 
of  a  wife,  recrimination  tliough  a  good  bar  to  a  divorce,  is 
not  to  this  action,  though  it  may  be  a  matter  in  mitigation." 
Collusion,  sufferance  or  connivance,  constitute  a  defense  to  an 
action  by  the  husband  for  the  wife's  seduction,  and  negligence, 
lack  of  observation,  as  well  as  loose  and  improper  conduct  of 
the  husband,  even  where  they  fail  to  showcolhision  or  conniv- 
ance, may  go  in  mitigation  of  damages."  So,  the  domestic 
life  of  the  plaintiff  and  his  wife,  and  infelicitous  relations 
between  them,  may  be  shown  in  mitigation  of  damages."  And 
in  an  action  by  the  father  for  the  seduction  of  his  daughter, 
upon  the  ground  of  loss  of  service,  the  defendant  may  prove  in 
defense  of  the  action  that  the  plaintiff  permitted  the  defendant 
to  visit  the  daughter  as  a  suitor,  knowing  him  to  be  a  married 
man,  and  after  being  cautioned  against  it;  or  that  he  other- 
wise connived  at  her  criminal  conduct." 

§  702.  Amount  of  Verdict.— There  is  in  this  action,  no 
fixed  rule  for  the  measure  of  damages.     The  jury  can  consider 

y  Bromby  v.  Walace.  4  Esp.,  237;  Wyndham  v.  Wycourt,  4  Esp.,  16. 

33  Van  Vacter  V.  McKillip,  7  Blackf.,  578;  Pierce  v.  Pierce,  3  Pick.,  299; 
2  Gr.  Ev.,  §  51;  2  HiU.  on  Torts,  509. 

34  2  Gr.  Ev.,  §  55;  1  Gr.  Ev.,  §  102,  and  cases  cited.  "As  almost  the  whole 
foundation  of  this  action  consists  in  the  loss  of  the  wife's  society,  it  is  most 
important  with  a  view  to  damages  to  ascertain  what  the  extent  of  this  loss  is, 
and  how  far  it  has  been  caused  by  the  acts  of  the  defendant."  Mayne  on 
Dam.,  286. 

3s  Reddie  v.  Scoot,  1  Peake's  R.,  240;  Ackerly  v.  Haines,  2  Gaines,  292; 
Seager  v.  Slingerland,  2  Gaines,  219, 
36 


562  THE  LAAV  OF  DAMAGES. 

Seduction  of,  and  Enticing  Away  a  Wife. 

not  only  the  elements  that  go  to  make  up  pecuniary  compen- 
sation for  the"  actual  loss  sustained  but,  where  there  are  no 
mitigating  circumstances,  they  may  inflict  exemplary  or  puni- 
tive damages.  And  it  must  be  a  plain  case  of  prejudice  or 
evil  passion,  on  the  part  of  the  jury,  that  would  warrant  the 
disturbing  of  their  verdict,'^ 

But  where  it  is  evident  from  the  circumstances  of  the  case, 
that  only  compensatory  damages  should  be  given,  or  where  it 
is  evident  that  the  jury  did  not  intend  to  give  exemplary 
damages,  and  in  that  view  damages  have  not  been  restricted 
within  the  legal  rules  and  are  therefore  excessive,  the  verdict 
should  be  set  aside." 

§  703.     Seduction  of,  and  Enticing  Away  a  Wife.— 

We  have  seen  that,  at  common  law,  an  action  could  be  main- 
tained by  a  husband  for  the  seduction  of,  or  for  criminal  con- 
versation with,  his  wife.  So,  he  may  recover  damages  for 
enticing  away  a  wife.'*  In  the  latter  case  it  has  been  held 
that  the  measure  of  damages  is  the  value  of  the  wife  of  whom 
the  husband  has  been  deprived.  But  the  fortune  of  the  de- 
fendant cannot  be  taken  into  account,  unless  it  was  used  by 
him  as  a  means  of  accomplishing  his  object.'"  In  an  action 
by  the  husband  for  the  seduction  of  his  wife,  the  defendant 
may  show,  in  mitigation  of  damages,  that  in  some  degree  the 
plaintiff  brought  the  injury  upon  himself;  as  that  he  suffered 

3^  Sargent  v.  Denison,  5  Cow.,  106,  and  cases  there  cited;  Stevenson  v. 
Belknap,  6  la.,  97.  And  a  verdict  of  $2,500  for  the  seduction  of  an  unmar- 
ried woman  was,  under  the  circumstances,  held  not  excessive.  Gray  v.  Bean, 
27  la.,  221. 

37  Sargent  v.  Denison,  supra;  Edmonson  v.  Machell.  2  T.  R.,  4. 

38Winsmore  v.  Greenbank,  Willes,  577;  Barnes  v.  Allen,  30  Barb.,  663; 
Schoraimerv.  Palmer,  4  Id.,  225;  Hutchinson  v.  Peck,  5  Johns.,  196;  Ben- 
nett V.  Smith,  21  Barb.,  439;  Barnes  v.  Allen,  .30  Id.,  663;  Turner  v.  Estes,  3 
Mass.;  317. 

39  Cowing  V.  Cowing  and  Molten,  38  L.  J.,  146;  33  L.  J.  P.  M.  &  A., 
149;  Foster  v.  Foster,  supra;  Shuneman  v.  Palmer,  4  Barb.,  225;  Hutche- 
8on  V.  Peck,  5  Johns.,  196;  Bennett  v.  Smith,  21  Barb.,  439;  Barnes  v.  Allen, 
30  Id.,  663;  Turner  v.  Estes,  3  Mass.,  317. 


SEDUCTION  AND  CRIM.  CON.  563 


Seduction  of,  and  Enticing  Away  a  Wife. 


Ill's  wife  to  remain  with  her  mother,  and  seldom  saw  her,  and 
allowed  her  to  continue  theatrical  engagements,  as  thongh  she 
were  single."' 

Ill  treatment  of  the  wife  by  the  husband  before  the  criminal 
intercourse,  may  be  shown  in  mitigation.  So,  the  general 
character  of  the  wife,  at  the  time,  may  be  shown  in  mitigation 
of  damages.  But  no  evidence  of  misconduct  subsequent  to 
her  seduction  can  be  shown."'  So  the  defendant,  in  an  action 
for  criminal  conversation,  may  sbow  a  want  of  chastity  in  the 
wife  before  marriage,  in  mitigation  of  damages;  but  the  jury 
may  also  consider  evidence  tending  to  show  that  the  unchaste 
acts  were  with  the  defendant  exclusively." 

Elements  which  enter  into  the  subject  of  damages  and  affect 
the  amount,  in  actions  for  criminal  conversation,  are  the  injury 
resulting  from  the  alienation  of  the  wife's  affections,  destroy- 
ing the  comfort  had  from  her  society;  the  raising  of  children 
for  the  husband  to  support  and  provide  for;  the  rank  and 
social  standing  of  the  parties;  the  pecuniary  standing,  and  the 
private  and  social  relations  of  the  husband  and  wife;  their 
mutual  devotion  or  otherwise;  the  enjoyment  of  comfort  and 
happiness  in  the  society  of  each;  and  the  character  of  the  wife 
previous  to  the  seduction." 

••'  Calcroft  V.  Earl  of  Harborough,  4  Car.  &  Payne,  499. 

*»  Palmer  v.  Cook.  7  Gray.  (Mass.),  418;  Bennett  v.  Smith,  21  Barb.,  439. 
See,  also,  2  Geen.  Ev.,  §  56,  as  to  matters  in  mitigation  for  enticing  away 
a  wife.     Elcam  v.  Fawcett,  2  Esp..  562. 

«  Conway  v.  Nichol,  34  la.,  533. 

**  Smith  V.  Allison,  Bull,  2  N.  P.,  27;  Winter  v.  Henn,  6  C.  &  P.,  494; 
Duberley  v.  Gunning,  4  T.  R.,  655;  Winter  v.  Wroot,  1  M.  &  Rob.,  404; 
Edwards  v.  Crock,  4  Esp..  39;  Trelaway  v.  Coleman.  1  B.  &  A.,  90;  Wilton 
V.  Webster,  7  C.  &  P.,  198;  Calcraft  v.  Lord  Harborough,  4  C.  &  P.,  499; 
Willis  V.  Bernard,  8  Bing.,  376.  The  American  authorities  in  support  of 
the  propositions  of  the  text  have  been  referred  to.  On  the  question  of  the 
right  to  show  the  wealth  of  the  defendant  in  aggravation  of  damages  there 
is,  as  we  have  seen,  some  conflict  of  authorities.  General  reputation  of  defend- 
ant's circumstances  was  held  proper  in  New  York.  Kniffin  v.  McCoimell, 
30  N.  Y.,  285.  See.  also,  McAuley  v.  Birkhead,  13  Irid.  (N.  C.  L.),  28; 
Wedon  v.  Timbril,  5  T.  R.,  360;  Mayneon  Dam.,  380.  381. 


564  THE  LAW  OF  DAMAGES. 


General  Principles  Relating  to  Fraud. 


CHAPTER  XXYII. 


FRAUD  AND  DECEIT. 

Section  704.  General  Principles  Relating  to  Fraud. 

705.  Fraud  in  the  Sale  of  Property. 

706.  Damages  in  Case  of  Fraud. 

707.  Defendant  Answerable  for  Contemplated  Damages. 

708.  False  Bepresentations  in  Heference  to  Iiand. 

709.  "Waiver  of  Fraud. 

710.  "What  no  Defense— Surety— Indorsee— Principal. 

712.    "When  the  Buyer  may  Sell  the  Property  and  still  Recover. 

§  704.    General  Principles  Relating  to  Fraud— This 

is  the  most  common  kind  of  tort,  and  occurs  only  in  con- 
nection "with  some  form  of  contract.  Fraud  is  not  only 
ground  for  setting  aside  or  rescinding  a  contract,  but  may  be 
plead  as  a  bar  to  an  action  on  a  contract.  Thus,  fraud  in 
obtaining  a  promissory  note  is  a  good  defense  to  an  action 
brought  by  the  payee  against  the  maker  thereof.'  But  this 
is  not  the  only  remedy  of  a  party  injured  by  a  fraud;  for  he 
may  usually  have  an  election  to  sue  for  the  fraud,  or  defend 
in  an  action  upon  the  contract  secured  by  fraud,  or  rescind 
the  same  and  recover  the  consideration  paid. 

The  forms  of  fraud  are  so  various  and  the  modes  so  subtle 
that  no  specific  or  definite  statement  thereof  can  be  given. 
Each  case  depends  upon  its  own  circumstances. 

'  Barber  v.  Kerr,  3  Barb.,  149j  1  HiU.,  on  Torts,  j}  3,  note. 


FRAUD  AND  DECEIT.  565 

Fraud  in  the  Sale  of  Property. 

Any  extended  treatment  of  this  subject  would  not  be  within 
the  proper  scope  of  this  treatise;  but  reference  may  be  had  to 
those  especially  devoted  to  its  consideration.''  Fraud,  is  any 
trick  or  artifice  employed  by  one  person  to  induce  another  to 
fall  into  an  error,  or  to  detain  him  in  it,  so  that  he  makes  an 
agreement  contrary  to  his  interest.  The  fraud  may  consist 
either,  first,  in  misrepresentation,  or  secondly,  in  the  conceal- 
ment of  a  material  fact.  A  fraud,  which  is  the  determininor 
cause  of  a  contract,  avoids  the  contract  ab  initio,  both  at  law 
and  in  equity.' 

§  705.  Fraud  in  the  Sale  of  Property.  —  We  have 
intimated  that  where  fraud  enters  into  a  contract,  the  party 
injured  thereby  may  have  a  choice  of  remedies.  The  vendee 
of  personal  property  may  waive  the  tort,  stand  by  the  contract 
and  have  such  remedies  thereunder  as  he  may  be  entitled  to;*  or 
he  may  at  law  rescind  the  contract  by  placing  the  vendor  in 
statu  quo,  or  as  nearly  so  as  it  is  possible  for  him  to  do,^  and. 
recover  the  consideration  that  has  been  paid;'  or,  he  may  set 
up  the  fraud  in  an  action  on  the  contract  by  the  vendor,  as  a 
defense,  or  in  recoupment,  or  by  way  of  counter-claim,  where 
that  is  permissible,  and  recover,  or  be  allowed,  such  damages 
as  he  may  have  sustained  by  the  fraudulent  act. 

On  the  question  whether  there  may  not  be  fraud  in  certain 
cases,  without  knowledge  of  the  falsity  of  the  representation, 
as  where  a  party  having  no  knowledge  makes  a  positive  and 
unqualified  statement  as  of  his  own  knowledge,  upon  which 
the  other  party  acts,  and  from  which  the  party  making  the 
statement   derives   an    advantage,   or   whether  to   constitute 

»  2  Hill.,  on  Torts,  73,  et  seq;  1  Id.,  3,  et  seq. 

3  Bouv.  Law  Die;  Mansfield  v.  Watson,  2  la.,  111. 

4  Heastings  v.  McGee,  66  Pa.  St.,  384;  Jackson  v.  Jackson,  47  Geo.,  99  (1872). 

5  Fulwider  v.  Wilford,  Morris,  323. 

6  Heastings  v.  McGee,  supra;  Rynear  v.  Neilen,  3  G.  Greene,  310;  Page 
V.  Cole,  6  la.,  153;  Armstrong  v.  Pierson,  5  la.,  317. 


566  THE  LAW  OF  DAMAGES. 


Fraud  in  the  Sale  of  Property. 


fraud  there  must  in  all  cases  be  willful  falsity  of  representa- 
tion, is  one  on  which  there  is  some  diversity  of  opinion." 

But  the  weight  of  authority  would  seem  to  favor  the  answer- 
ing of  the  first  inquiry  in  the  affirmative,  and  that  actual 
scienter  need  not  in  all  cases  be  shown.  Thus,  it  has  been  held 
that  a  misrepresentation  of  a  material  fact  made  by  one  party 
to  a  contract,  constitutes  legal  fraud  if  acted  upon  by  the  other 
party  even  though  such  misrepresentation  was  made  inno- 
cently, through  mistake;'"  and  this  is  particularly  the  rule  in 
equity."  So,  it  has  been  held,  that  where  a  false  and  fraudu- 
lent warranty  constitutes  the  gist  of  the  action,  the  scienter  is 
immaterial  in  an  action  for  the  tort." 

Thus,  in  a  sale  of  provisions  for  domestic  use,  it  has  been 
held,  that  there  is  an  implied  warranty  that  they  are  sound  and 
wholesome,  and  that  the  vendor  is  bound  to  know  this,  and  if 
they  are  not  so  he  is  liable  as  for  a  fraud,  in  an  action  therefor 
by  the  vendee." 

So,  where  there  are  false  representations  in  the  sale  of  real 
estate,  as  that  it  embraces  certain  designated  and  valuable 
land  which  it  does  not;  or  where  one  assumes  to  speak  posi- 
tively as  of  his  own  knowledge,  without  having  the  knowledge 

9  See  opinion  of  Justice  Dillon,  in  Bondurant  v.  Crawford,  22  la.,  40.  Also, 
Bennett  v.  Judson,  21  N.  Y.,  238  (1860).  Opinion  of  Maule,  J.,  m  Evans  v. 
Edwards,  76  Eng.  C.  L.  (13  B.  C),  773  (1853);  Stone  v.  Daney,  4  Met.,  151. 
Opinion  by  Dewey,  J.,  Thomas  v.  McCarn,  6  B.  Mon.,  601;  Monroe  v. 
Pritchett,  16  Ala.,  785;  Lockridge  v.  Foster,  5  111.,  569;  1  Story  Eq.  Jur., 
§  193;  Collins  v.  Evans,  48  Eng.  C.  L.,  820;  Rawlings  v.  Bell,  50  Id.,  591; 
Wilson  V.  Fuller,  43  Eng.  C.  L.,  634;  Id.,  1009,  where  it  is  held  that  stating 
a  belief  as  knowledge  may  render  a  person  liable  for  fraud;  Cabot  v.  Christie, 
42Vt.,121. 

"  Frenzel  v.  MiUer.  37  Ind.,  1  (1872);  Elder  v.  Allison,  45  Geo.,  13.  See, 
also,  Johnson  v.  Hatton,  2  Abb.  (N.  Y.),  465,  App.  Des;  Craig  v.  Ward,  1 
Abb.  (N.  Y.),  454. 

"  Bacon  v.  Bronson,  7  Johns.  Ch.,  194;  Wilcox  v.  Iowa  Wesleyan  Univer- 
sity, 32  la.,  367. 

«  Berkshire  Ins.  Co.  v.  Sturgis,  13  Grey,  177;  McLeod  v.  Tutt,  1  How. 
(Miss.),  288;  Evans  v.  Edmonds,  13  B.  &  C.  186. 

'3  Van  Brucken  v.  Fonda,  12  Johns..  468;  Hill  on  Sales,  Title,  Warranty. 


FRAUD  AND  DECEIT.  567 


Fraud  in  the  Sale  of  Property. 


in  relation  to  the  subject  matter  of  a  contract;  tins  is  held, 
equivalent  to  actual  knowledge,  and  if  the  matter  is  false  the 
intention  to  deceive  is  generally  imputed  to  the  party  or  infer- 
red." But,  it  has  been  recently  held  that  to  sustain  an  action, 
founded  upon  the  fraud  and  deceit  of  the  defendant  in  mak- 
ing false  representations,  it  must  be  shown  that  he  believed, 
or  had  reason  to  believe,  at  the  time  of  making  such  represen- 
tations that  they  were  false,  or  that  he  assumed  to  have  or 
intended  to  convey  the  iinpression  that  he  had  actual  knowl- 
edge of  their  truth,  though  conscious  that  he  had  no  such 
knowledge.'* 

So,  an  action  lies  for  the  deceit,  when  one  represents  himself 
to  have  authority  to  contract  for  the  execution  of  a  lease  of 
certain  premises,  and  who  promises  to  procure  an  execution  of 
the  lease,  when  in  fact  he  has  no  sucli  agency  or  authority, 
and  knows  his  representation  to  be  false.  The  party  thus  mis- 
representing is  liable  in  damages  to  one  who,  believing  the 
representations  to  be  true  and  acting  upon  them,  incurs 
expense  and  loss  thereby." 

On  the  other  hand,  the  vendee  is  without  remedy  against  a 
vendor,  if  he  had  knowledge  in  respect  to  the  false  representa- 
tions, or  had  reasonable  means  of  information  on  the  subject 
and  failed  to  avail  himself  of  them,  or  if  he  had  equal  means 
of  knowledge  with  the  vendor."  And,  on  a  purchase  of  prop- 
erty, even  with  false  representations  on  the  part  of  the  vendor 
the  purchaser  cannot  be  careless  and  negligent,  but  must  use 
reasonable  diligence  in  discovering  any  defect  in  the  property, 

'4  Hill. on  Vendors,  325,  335;  Lewis  v.  Eagle,  etc.,  10  Gray,  572;  1  Hill.on 
Torts,  14. 

'5  Meyer  v.  Amdon,  45  N.  Y.,  169  (1871).  But  compare  Oberlander  v. 
Spiess,  45  N.  Y.,  175.  See,  also,  DuFlow  v.  Powers,  14  Abb.  Pr.  (N.  Y.), 
N.  S.,  391. 

'6  Dung  V.  Parker,  3  Daly.  (N.  Y.),  89. 

'7  Bell  V.  Ryerson  &  Barlow,  11  Iowa,  233;  Sieveking  v.  Litzer,  31  Iowa,  13. 


668  THE  LAW  OF  DAMAGES. 


Damages  in  Case  of  Fraud. 


and  lie  cannot  make  the  mere  opinion  of  another  the  ground 
of  fraud,  where  it  relates  to  the  value  of  property." 

Mr.  Hilliard,  in  his  valuable  treatise  on  Torts,  in  relation  to 
this  subject  remarks:  "While  a  vendee  in  case  of  deceit  may 
claim  as  for  a  tort,  against  a  vendor,  notwithstanding  a  contract 
or  even  a  warranty;  so,  on  the  other  hand,  upon  similar 
ground  it  is  held,  that  a  fraudulent  purchase  does  not  vest  a 
title  in  the  purchaser,  but  the  vendor  may  sue  for  it  in  trover."" 
Fraud  renders  the  contract  void  and  the  vendor  may  reclaim 
the  property  if  induced  to  part  with  it  by  fraudulent  repre- 
sentations.^" 

§  706.  Damages  in  Case  of  Fraud.— In  case  of  fraudu- 
lent representations  of  the  quality  or  quantity  of  property  sold, 
the  general  rule  of  damages  is  the  difference  between  the 
value  of  the  property  as  it  is,  and  what  it  would  be  worth  if 
the  representations  had  been  true;''  to  which  the  jury  are 
generally  at  liberty  to  add  something  by  way  of  punishment 
for  the  fraud."  In  other  cases,  the  injured  party  may  recover 
such  damages  as  may  be  sustained  by  the  fraud.  Thus  in 
Texas,  where  a  drove  of  horses  sold  were  infected  with  a 
contagious  disease,  which  was  known  to  the  seller,  who  con- 
cealed the  same  from  the  purchaser  and  received  a  sound  price 
for  tlie  same,  it  was  held,  that  if  the  purchaser  rescinded  the 
contract  he  could  recover  the  money  paid  with  interest,  and 
the  value  of  the  care  and  attention  bestowed,  and  the  amount 


'SBondurant  v.  Crawford,  22  Iowa,  40;  Fields  v.  Runse,  3  Jones,  72;  Post 
V.  Williams,  6  Indiana,  219;  McDaniel  v.  Strohecker,  19  Geo.,  432;  Gage  v. 
Parker,  25  Barb.,  141;  Cronk  v.  Cole,  10  Indiana,  485;  Pedrick  v.  Porter,  5 
AUen,  380;  Longshore  v.  Jack  &  Co.,  30  Iowa,  298. 

'9 1  Hill,  on  Torts,  15. 

«>  Hunter  v.  The  Hudson,  etc.,  20  Rarb.,  493;  Wheaton  v.  Baker,  14  Barb., 
594. 

"  Graves  v.  Spier,  58  Barb.  (N.  Y.),  349;  Page  v.  Parker,  43  N.  H.,  363; 
Can-  V.  Moore,  41  Id.,  131;  Stevenson  v.  Greenlee,  15  la.,  96. 

^  Wheeler  v.  Randell,  48  111.,  182;  McAvoy  v.  Wright,  25  Ind.,  22.  See, 
also.  Page  v.  Parker,  supra. 


FRAUD  A^D  DECEIT.  569 

Damages  in  Case  of  Fraud. 

of  expenses  incurred  in  preserving  the  horses;  that  if  the 
contract  was  not  rescinded,  he  would  be  entitled  to  dama" 
gesi  equivalent  to  the  value  of  such  as  died,  and  the  difference 
in  value  between  the  surviving  horses  and  the  price  paid  for 
them,  with  interest  on  these  sums  from  the  date  of  sale,  and 
the  value  of  his  time,  labor  and  expense  in  taking  care  of 
them,  and  the  injury  sustained  by  the  contagion  being  com- 
municated to  other  animals  of  the  purchaser,  without  his  fault. 
In  an  action  for  deceit  on  the  sale  of  property,  and  the  prop- 
erty fraudulently  sold  and  retained  by  the  vendee  has  any 
value,  such  value  must  be  allowed  the  defendant  in  assessing 
damages."  And  where  there  was  a  false  representation,  in  a 
sale  of  the  defendant's  interest  in  a  stock  of  goods,  and  the 
good  will  of  a  firm  of  which  he  was  a  member,  the  measure  of 
damages  was  held  to  be  the  difference  between  the  actual 
value  of  the  interest  at  the  time  of  the  sale,  and  its  value 
if  it  had  been  as  it  was  represented  to  be.°"  And  where 
the  defendant  sold  sheep,  falsely  representing  them  to  be  free 
from  "scab,"  or  "foot  rot,"  and  other  sheep  belonging  to  the 
purchaser  became  diseased  thereby,  it  was  held,  that  the  pur- 
chaser was  entitled  to  recover  for  all  the  injury  sustained." 
So,  where  a  cattle-dealer  sold  a  cow,  fraudulently  representing 
her  to  be  free  from  infectious  disease,  knowing  she  was  not, 
and  she  was  placed  with  others  which  took  the  disease  and 
died,  he  was  held  liable  for  the  value  of  all  the  cows." 

=5  Wintz  V.  Morrison,  17  Tex.,  372.  See,  also,  Wheeler  v,  Randell,  48 
111.,  182;  Packard  v.  Slack,  32  Vt.,  9;  McLaren  v.  Long,  25  Geo.,  708,  where 
the  same  general  doctrine  was  recognized;  but  the  general  rule  of  damages  is 
the  same  as  on  a  warranty  of  quahty,  viz :  the  difference  between  the  value 
of  the  article  as  it  should  have  been,  and  as  it  is  with  the  defect;  and  also 
such  consequential  damages  as  are  referred  to  in  the  text.   See,  ante,  Chap.  12. 

^  Morse  v.  Hutchins,  102  Mass.,  439  (1869). 

^  SheiTod  V.  Langdon,  21  la.,  518.  And  it  was  held  proper  to  allow  for 
damages  sustained  to  other  sheep  of  the  plaintiff  by  reason  of  the  scab  being 
communicated  to  them  by  the  diseased  sheep  purchased. 

»8  Mullett  V.  Mason,  1  L.  R.  (C.  P.),  559.  See,  also,  Knowles  v.  Nunns,  14 
L.  T.  R.,  592;  Fans  v.  Lewis,  2  B.  Men.,  375;  Bradley  v.  Rea,  14  AUen,  20. 


670  THE  LAW  OF  DAMAGES. 


Defendant  Answerable  for  Contemplated  Damages-False  Representations,  etc. 


And  where  cattle  were  sold  with  a  fraudulent  warranty  and 
representation  that  they  were  sound  and  suitable  for  a  special 
purpose,  and  the  vendor  had  knowledge  of  the  special  purpose 
for  which  they  were  purchased,  namely,  for  work,  and  by 
reason  of  the  unsoundness  they  were  worth  $10  less  for  beef,  and 
$25  less  for  work,  the  larger  sum  was  held  to  be  the  measure 
of  damages.''" 

§  707.  Defendant  Answerable  for  Contemplated  Dam- 
ages.—In  case  of  fraud,  it  is  held  that  the  wrongdoer  must 
answer  for  those  results  injurious  to  another  party,  which 
must  be  presumed  to  have  been  within  his  contemplation  at 
the  time  of  the  commission  of  the  fraud.  And  where  the  plain- 
tiff was  enticed  by  the  deceit  of  the  defendant  into  an  oil 
speculation  with  him,  it  was  held: 

1.  That  the  defendant  was  responsible  for  the  moneys  put 
into  the  scheme  by  the  plaintiff  in  the  ordinary  course  of  busi- 
ness, which  moneys  were  lost. 

2,  That  from  such  moneys  must  be  deducted  the  value  of 
the  interest  which  the  plaintiff  retained  in  the  property  held 
by  those  associated  in  the  speculation.^" 

§  708.  False  Representations  as  to  Land.— In  an  action 
for  fraudulent  representations  in  the  sale  or  exchange  of  real 
estate,  the  measure  of  damages  is  the  difference  between  the  land 
purchased  or  obtained,  as  it  was  at  the  time,  and  the  sum  that 
the  land  would  have  been  worth  at  the  time,  if  it  had  been 
such  as  it  was  represented  to  be,  by  the  vendor,''  and  to  which 
may  be  added  as  damages  a  sum  equivalent  to  interest  on  this 
difference  from  the  time  the  conveyance  was  made.''     So,  in 

=9  Ladd  V.  Lord,  36  Vt.,  194. 

3"  Crater  v.  Bininger,  43  N.  J.  L.,  513.  See  doctrine  Hadley  v.  Baxen- 
dale,  9  Exch.,  341. 

3«  Likes  V.  Baer,  8  Iowa,  368;  Hiner  v.  Richter,  51  111.,  299;  Gates  v.  Ray- 
nolds,  13  la.,  1;  Moberly  v.  Alexander,  19  Iowa,  162;  Hahn  v.  Cummings,  3 
la.,  583. 

3»  Wright  V.  Roach,  57  Me.,  600.  » 


FKAUD  AND  DECEIT.  571 

Waiver  of  fraud— What  no  Defense— Surety,  etc. 

an  action  for  false  representations  as  to  the  quantity  of  land 
conveyed,  the  measure  of  damages  is  the  contract  price  per 
acre  for  the  deficit,  with  interest  thereon.  And  it  is  compe- 
tent to  prove,  when  the  parties  have  exchanged  lands,  what 
estimate  was  placed  upon  the  property  received  by  the  defen- 
dant, and  the  property  transferred  to  the  plaintiff,  at  the  time 
the  contract  was  made.^^ 

§  709.  Waiver  of  Fraud. — He  who  knowingly  accepts 
and  retains  any  benefit  under  a  contract  tainted  with  fraud, 
or  uses  the  property  acquired  as  his  own  after  the  discovery 
of  the  fraud,  or  does  any  positive  act  forgiving  the  fraud,  or 
unduly  delays  claiming  back  his  property  or  giving  up  what 
he  has  received,  afiirms  the  validity  of  the  contract.^^ 

§  710.  What  no  Defense— Surety— Indorsee— Prin- 
cipal.— The  fact  that  a  person  was  induced  to  sign  his 
name  as  surety  to  a  negotiable  note  without  reading  it,  and 
under  the  representations  of  the  maker  that  it  was  payable  to 
a  bank  when  it  was  in  fact  payable  to  an  individual,  consti- 
tutes no  sufficient  defense  to  the  note  in  an  action  thei-eon  by 
the  payee  against  the  surety,  when  it  does  not  appear  that  the 
payee  had  any  knowledge  of  the  alleged  fraud.*"  So,  in  an 
action  on  a  promissory  note  against  the  maker,  proof  may 
be  given  by  the  latter  that  the  note  was  obtained  from  him 
through  fraud  of  the  payee,  and  upon  such  pi'oof  the  indorsee, 
is  required  to  show  himself  to  be  the  holder,  hona  fide  and  for 
a  valuable  consideration."  So  a  fraud  practiced  by  the  prin- 
cipal of  a  hail  hond^  on  a  surety,  cannot  be  set  up  as  against 
the  obligee  unless  he  is  chargeable  with  the  fraud.^* 

34  Hallam  v.  Todhunter,  24  la.,  166. 

35  Negley  v.  Lindsey,  67  Pa.  St.,  217  (1879). 

36  Wright  V.  Flynn,  33  la.,  159,  where  one  or  two  innocent  parties  must 
suffer  a  loss,  that  one  must  bear  the  loss  whose  carelessness  or  acts  have  been 
instrumental  in  producing  the  loss. 

37  Cummings  v.  Thompson,  18  Minn.,  246  (1875). 

38  Lepper  v.  Nultman,  35  Ind.,  384. 


672  THE  LAW  OF  DAMAGES. 

When  Buyer  may  sell  Property  and  still  Recover. 

§  7 1 1.  We  have  already  considered  the  question  of  motives 
as  affecting  the  measure  of  damages  in  actions  for  torts,  and 
even  on  contracts  in  certain  cases,  such  as  where  the  vendor  of 
real  estate  having  at  the  time  of  the  contract  to  convey  the 
legal  title,  subsequently  puts  it  out  of  his  power  to  convey, 
or  having  the  legal  title  refuses  to  convey,  or  at  the  time  of 
the  contract  to  convey,  knew  he  had  no  title,  or  in  any  case 
where  his  inability  to  perform  arises  from  his  fraud,  in  which 
case  the  vendee  may  recover  damages  amounting  to  a  com- 
plete indemnity,  including  compensation  for  any  actual  loss  by 
the  increased  value  of  the  laud  at  the  time  the  contract  should 
have  been  executed.'* 

This  rule  is  claimed  to  be  an  exception  to  one  which 
entirely  ignores  any  consideration  of  motives,  in  the  measure 
of  damages  on  a  breach  of  contract.  But  these  cases  do  not, 
as  we  have  seen,  constitute  the  only  exception,  for  in  some 
other  cases  the  courts,  disregarding  this  rule,  have  characterized 
the  conduct  of  the  party  failing  to  perform  as  fraudulent;  as 
where  there  is  a  malicious  breach,  or  a  wanton  and  malicious 
refusal  to  perform  a  contract  under  circumstances  of  aggra- 
vation; and  in  such  cases  the  measure  of  damages  is  brought 
within  the  principle  of  damages  in  cases  of  torts." 

§  712.  When  the  Buyer  may  Sell  the  Property,  and 
still  Recover. — Where  there  is  a  fraudulent  warranty  of 
property  the  purchaser  may  sell  it,  for  the  best  price  he  can 
obtain,  with  or  without  offering  to  return  it,  and  the  measure 
of  damages  in  such  a  case,  in  an  action  against  the  vendor  for 
the  fraud,  would  be  the  difference  between  the  price  obtained 
and  the  value  of  the  property  if  it  had  been  as  represented." 
So,  where  there  is  fraud  in  the  purchaser,  by  which  he  obtains 
property  through   false   representations,  relied  upon  by  the 

»  See,  ante,  §  58,  etseq. 

*>  See  cases  cited,  ante,  §  58,  et  seq. 

«  Woodward  v.  Thatcher,  21  Vt.,  580. 


FRAUD  AND  DECEIT.  573 

Wlien  Buyer  may  sell  Property  and  still  Recover. 

rendor  and  materially  affecting  his  rights  and  interests,  the 
vendor  may  recover  the  goods  in  a  proper  action."  This 
may  occur  where  there  is  a  fraudulent  representation  by  the 
buyer  as  to  his  solvency,  or  where  there  is  any  preconceived 
design  not  to  pay  for  the  property  purchased."  But  a  pur- 
chaser in  good  faith  for  a  vahiable  consideration,  from  such  a 
fraudulent  vendee,  may  hold  the  goods  against  the  vendor  who 
has  thus  been  defrauded." 

42  In  some  of  the  states  in  such  cases,  if  the  plaintiff  fails  to  secure  the 
specific  property,  he  may  in  the  same  action  have  a  judgment  for  its  value. 
Iowa  Code  (1873),  §  3238,  et  seq.  Gary  v.  HotaUng,  1  HiU,  311;  Thomson  v. 
Rowe,  16  Conn.,  71;  McKnight  v.  Morgan,  2  Barb.,  171. 

43  Ash  v.  Pullman,  1  Hill,  302;  Bidault  v.  Wales,  20  Mo.,  546;  Fox  v.  Web- 
ster, 46  Mo.,  181. 

44  Root  v.  Funch,  13  Wend.,  570;  Morrow  v.  Walsh,  8  Cow.,  238. 


574  THE  LAW  OF  DAMAGES. 


Power  of  Congress— Infringement  a  Tort— Actual  Damages. 


CHAPTER  XXYIII. 


PATENTS. 

Section  713.  Power  of  Congresa— Infringement  a  Tort. 

714.  Actual  Damages. 

716.  Treble  Damages. 

717.  "What  may  be  Allowed  as  Damages. 

718.  The  Defendant  may  be  Required  to  Account. 

§713.    Power  of  Congress— Infringement  a  Tort. — 

In  reference  to  patents,  it  may  be  observed  that  Congress 
has  the  power  to  grant  the  exclusive  privilege  to  the  inventor 
of  any  useful  thing,  of  making,  using  and  vending  such  inven- 
tion ;  and  where  a  patent  is  issued  for  that  purpose,  any  infringe- 
ment thereof  is  a  tort  for  which  the  wrongdoer  is  liable,  on 
general  principles,  to  pay  at  least  any  actual  damages  sustained 
by  the  patentee.* 

Damages  for  an  infringement  may  be  recovered,  not  only 
where  the  patent  covers  the  whole  machine  but  where  it  is 
for  an  improvement  merely." 

§  7 14,  Actual  Damages . — The  mode  of  determining  the 
actual  damages  may  be  illustrated  bj^  the  opinion  of  the  court 
in  Wilbur  v.  Beecher.^  Nelson,  J.,  remarked:  ''If  the  defend- 
ant has  been  guilty  of  violating  the  plaintiff's  rights,  the  rule 
on  the  question  of  damages  is,  that  the  plaintiff  is  entitled  to 

'  PhiUips  on  Patents,  2;  1  Hill,  on  Torts,  678. 

»  Seymour  v.  McCormick,  16  How.,  480;  19  Id.,  96. 

3  2Blatcli.,  132. 


PATENTS.  575 


Actual  Damages. 


all  tlie  actual  profits  which  the  defendant  has  made  by  the 
use  of  the  principle  of  the  plaintiflfs  combination.  In  other 
words,  the  plaintiff  is  entitled  to  all  the  damages  which  he  has 
sustained  by  reason  of  the  use  which  the  defendant  has  made 
of  the  plaintifi''s  property.  This  is  in  effect  the  same  thing, 
because  the  law  presumes  that  if  the  defendant  had  not  put 
his  machines  into  the  market  the  demand  would  have  been 
for  the  plaintiff's,  and  that  he  would  have  received  the  profits 
on  the  machines  which  have  been  made  and  sold  by  the  defend- 
ant. Vindictive  or  exemplary  damages  are  not  allowed.  The 
jury  are  confined  to  actual  damages,  and  the  law  has  provided 
that  the  court  may  increase  those  damages  in  certain  cases."* 

The  principle  is  further  illustrated  by  the  charge  of  the 
court  to  the  jury  in  Pitts  v.  Rall^  where  it  was  said:  "One 
mode  of  arriving  at  the  actual  damages  is,  to  ascertain  the 
profits  which  the  plaintiff  derives  from  the  machines  which  he 
manufactures  and  sells,  and  which  have  been  manufoctured 
and  sold  by  the  defendant.  This  mode  is  founded  upon  the 
presumption  of  law,  that  if  the  defendant  had  not  been  wrong- 
fully concerned  in  the  manufacture  of  the  machines  those 
persons  who  procured  them  from  him  would  have  applied  to 
the  patentee  or  assignee  for  them. 

Another  mode,  and  one  resorted  to  partially  in  this  case,  is 
to  ascertain  the  profits  which  the  party  infringing  has  derived 
from  the  use  of  the  invention  or  the  construction  of  the  machines ; 
because,  whatever  profits  he  has  derived  have  arisen  from  the 
wrongful  use  of  the  invention,  and  belong  to  the  real  owner  of 
the  machine.  This  measure  of  damages,  however,  is  not  control- 
lino-,  and  ought  not  to  be,  because  a  party  concerned  in  infring- 

4  See,  also,  Hall  v.  WHes,  2  Blatchf.,  (U.  S.  C.  C),  194,  where  the  same 
judge  observes:  "The  rule  of  law  as  to  damages,  when  an  infringement  is 
made  out,  is,  to  give  the  plaintiff  the  actual  loss  which  he  has  sustained,  and 
nothing  more.  Exemplary  or  vindictive  damages  cannot  be  given.  If  the 
damages  are  insufficient,  tliere  is  a  provision  of  law  authorizdng  the  court  to 
treble  them." 

s  2  Blatchf.  (U.  S.  C.  C),  229. 


576  THE  LAW  OF  DAMAGES. 

Actual  Damages. 

ing  a  patent,  stands  in  a  different  position  from  the  patentee,  not 
having  been  previously  subjected  to  the  expense  and  labor  to 
which  the  latter  is  frequently  exposed  in  the  process  of  invention 
and  experiment.  Hence  the  person  who  enters  upon  the  busi- 
ness without  previous  expense,  may  well  afford  to  sell  machines 
at  less  profit  than  the  patentee.'"  Again  where  a  master 
made  a  report,  under  instructions  of  the  court,  in  which 
he  stated  the  sum  of  $2,566.46,  as  the  amount  of  profits  which 
the  defendant,  by  reasonable  diligence,  might  have  made  from 
the  use  of  the  patent  in  sales  of  machines  during  the  period 
for  which  damages  were  claimed.  Justice  McLean,  on  appeal 
of  the  case,  remarked:  "The  decree  was  entered  on  the  report 
of  the  master  for  the  estimated  amount  of  profits  which  tlie 
defendant  with  reasonable  diligence  might  have  realized;  not 
what  in  fact  he  did  realize.  This  instruction  was  erroneous. 
The  rule  in  such  a  case  is,  the  amount  of  profits  received  by 
the  unlawful  use  of  the  machines,  as  this,  in  general  is  the  dam- 
age done  to  the  owner  of  the  patent.  Generally,  this  is  suffi- 
cient to  protect  the  rights  of  the  owner;  but,  where  the  wrong 
has  been  done  under  aggravated  circumstances,  the  court  has 
the  power,  under  the  statute,  to  punish  it  adequately  by 
an  increase  of  damages." ' 

6  See,  also,  McConnick  v.  Seymour,  2  Blatchf.,  (U.  S,  C.  C),  240,  where  it 
was  also  held  that  the  jury  might  allow  the  plaintiff  damages  resulting  from 
pubUcations  of  the  defendant,  disparaging  the  plaintiff's  improvement, 
while  he  was  engaged  in  violating  the  patent.  See,  also.  Buck  v.  Hermance, 
1  Blacthf.,  Id.,  898;  Parker  v.  Corbin,  4  McLean.  462;  Parker  v.  Hulme,  7 
West.,  L.  J.,  417;  1  Fisher,  P.  C,  44. 

7  Dean  v.  Mason,  20  How.  (U.  S.),  198.  See,  also,  Livingston  v.  Woodworth, 

15  Id.,  546;  Mayor,  etc.,  N.  Y.,  v.  Ransom,  23  How.,  487;  MitcheU  v.  Hawley, 

16  Wall.,  544;  Philip  v.  Nock.  17,  Id.,  460,  where  it  was  held  that  damages 
cannot  be  left  to  conjecture  by  the  jury;  Rubber  Co.  v.  Goodyear,  9  Wall., 
788;  Mowery  v.  Whitney,  14  Id.,  620,  interest  not  usually  allowable;  Hussy 
V.  Whitney,  1  Bond.,  407;  Nesmith  v.  Calvert,  1  Wood  &  M.,  34. 

The  foregoing  decisions  excluding  exemplary  damages,  were  made  under, 
and  in  reference  to,  the  Acts  of  Congress  of  1800  and  1836;  the  former  pro- 
viding that  the  infringer  should  pay  three  times  the  actual  damage  sus- 
tained; and  the  latter,  in  case  of  a  verdict  for  the  plaintiflF,  giving  power  to 


PATE:N'TS.  577 


Actual  Damages. 


The  methods  of  arriring  at  actual  damages  may  be  further 
illustrated.  Thus,  actual  damages  are  such  as  can  be  actually 
proved,  and  were  in  fact  sustained,  as  contradistinguished 
from  imaginary,  or  exemplary  damages.  And  in  case  of  the 
illegal  use  of  a  machine  the  damages  should  be  the  value  of 
the  use  during  the  time.  But  if  tliere  has  been  only  an 
infringement  of  the  patent  in  the  making  of  the  machine,  and 
there  has  been  no  use  of  it,  only  nominal  damages  should  be 
allowed.*  And  the  estimate  of  the  jury  must  be  very  extrava- 
gant to  authorize  the  court  to  set  aside  the  verdict,  as  being 
excessive.*  It  is  the  duty  of  the  jury  to  give  the  plaintiff 
reasonable  damages;  but  where  a  patentee  fraudulently  leads 
a  party  to  infringe  on  his  right,  only  nominal  damages  can  be 
recovered  of  him." 

The  jury  are  at  liberty  to  give  the  plaintiff  such  damages, 
not  in  their  nature  vindictive,  as  shall  compensate  him  fully 
for  all  his  actual  losses  and  injuries  occasioned  by  the  viola- 
tion of  the  patent  by  the  defendant."  And  in  case  of  wanton 
and  persevering  encroachments  on  rights  secured  by  a  patent, 

the  "court  to  render  judgment  for  any  sum  above  the  amount  found  by  such 
verdict  as  the  actual  damage  sustained  by  the  plaintiff,  not  exceeding  three 
times  the  amoimt  thereof  according  to  the  circumstances  of  the  case,  with 
costs." 

This  section,  confines  the  jury  to  the  actual  damages  sustained.  They  can- 
not award  punitive  damages.  Seymour  v.  McCormick,  16  How.,  480  (1853); 
Stephens  v.  Felt,  2  Blatchf.,  38  (1846);  Stimpson  v.  Railroads,  1  Wall.,  Jr., 
169  (1847).  Damages  cannot  include  counsel  fees  in  addition  to  taxable  costs. 
Stimpson  v.  Raihoads,  supra;  Leese  v.  Huntington,  23  How.,  8  (1859).  The 
present  act  of  Congress  will  be  hereafter  set  out,  which  in  this  respect  is  sim- 
ilar to  the  Act  of  1836. 

8  Whittemore  v.  Cutter,  1  Gall.,  481;  Kneeas  v.  SchuylMll  Bank,  4  Wash., 
14  (1820);  Earle  v.  Sawyer,  4  Mason,  14.  So.  nominal  damages  should  only 
be  allowed  where  there  is  proof  of  an  infringement  but  no  evidence  of  the 
actual  damages.    Mayor,  etc..  of  N.  Y.,  v.  Ransom.  23  How.,  488. 

9  Whitney  v.  Emmet,  Bald.,  325;  Stanley  v.  Whipple,  2  McLean,  40 
(1839);  Alden  v.  Dewey,  1  Story,  336  (1844);  Stephens  v.  Felt,  supra. 

'o  Washburn  v.  Gould,  3  Story,  122  (1844). 
"  Pierson  v.  Eagle  Screw  Co.,  3  Story,  410  (1844). 
37 


578  THE  LAW  OF  DAMAGES. 


Treble  Damages— What  may  be  Allowed  as  Damages. 


and  whenever  necessary  for  the  purpose  of  protection  against 
infrino-ement,  the  coiu-t  should  treble  the  damages." 

§716.  Treble  Damages.— By  a  recent  Act  of  Congress, 
the  complainant  may  not  only  restrain  by  injunction  the  pirati- 
cal use  of  his  invention,  but  recover  for  an  infringement  of 
the  same,  in  addition  to  the  profits  to  be  accounted  for  by 
the  defendant,  the  damages  the  complainant  has  sustained 
thereby;  and  these  damages  may  be  trebled,  in  the  discretion 
of  the  court." 

§  717.  What  may  be  Allowed  as  Damages.— Remote 
and  consequential  damages,  as  we  have  seen,  should  be  disre- 
garded.''    And  applications  to  the  court  to  treble  the  dama- 

Allen  V.  Blunt,  2  Wood  &  Min..  147;  Greyon  v.  Serrel,  1  Blatchf.,  245; 
Footev.  Silsby,  1  Id.,  459.  But  where  the  defendant  infriVif?es  a  patent 
ignorantly  and  innocently  the  jury  should  be  strictly  confined  to  actual 
damages,  and  they  should  not  be  increased  by  the  court.  Parker  v.  Corbin, 
4  McLean,  463;  Hogg  v.  Emerson,  11  How.,  587. 

'3  Act  July  8,  1870,  §  §  55,  59;  16  U.  S.  Stat,  at  Large,  206,  207;  Rev. 
Stat.  (1874),  p.  960,  §  §  4919,  4921.    These  sections  provide  as  follows: 

"Sec.  4919.  Damages  for  the  infringement  of  any  patent  may  be 
recovered  by  action  on  the  case  in  the  name  of  the  party  interested,  either  as 
patentee,  assignee  or  grantee.  And  whenever  in  any  such  action  a  verdict 
is  rendered  for  the  plaintiff,  the  court  may  render  judgment  thereon  for  any 
sum  above  the  amount  found  by  the  verdict  as  the  actual  damages  sustained, 
according  to  the  circumstances  of  the  case,  not  exceeding  three  times  the 
amount  of  such  verdict,  together  with  the  costs." 

"Sec.  4921.  The  several  courts  vested  with  jurisdiction  of  cases  arising 
under  the  patent  laws,  shall  have  power  to  grant  injunctions  according  to 
the  course  and  principles  of  courts  of  equity,  to  prevent  the  violation  of  any 
right  secured  by  patent,  on  such  terms  as  the  court  may  deem  reasonable; 
and  upon  a  decree  being  rendered  in  any  such  case  for  an  infringement,  the 
complainant  shall  be  entitled  to  recover,  in  addition  to  the  profits  to  be 
accounted  for  by  the  defendant,  the  damages  the  complainant  has  sustained 
thereby;  and  the  court  shall  assess  the  same,  or  cause  the  same  to  be  assessed 
under  its  direction.  And  the  court  shall  have  the  same  power  to  increase 
such  damages  in  its  discretion,  as  is  given  to  increase  the  damages  found  by 
verdicts  in  actions,  in  the  nature  of  actions  of  trespass  upon  tlae  case." 

The  power  of  the  court  to  increase  the  damages  is  in  lieu  of  any  right  to 
exemplary  damages.  Seymour  v.  McCormick,  16  How.,  480.  See,  also, 
Allen  V.  Dewey,  1  Story,  336. 

'*  Carter  V.  Baker,  4  Fish.  (P.  C),  404. 


PATENTS.  579 


Defendant  may  be  Required  to  Account. 


ges  should  be  refused  unless  special  reasons  are  shown,  such 
as  malice,  insufficiency  of  the  verdict,  or  the  like.'  And  a 
jury  cannot  allow  for  any  expenditures  for  counsel  fees,  or 
other  charges,  even  though  necessarily  incurred  to  vindicate 
the  patent,  and  though  not  taxable  as  costs."  So,  counsel  fees 
paid  by  the  complainant  in  a  suit  in  equity  for  an  infringe- 
ment of  a  patent,  are  not  recovereble  as  damages,  under  Sec. 
55  of  the  Patent  Act  of  1870,  any  more  than  they  were  under 
the  corresponding  provisions  of  Sec.  14  of  the  Patent  Act  of 
1836.^  But  costs  of  suit  should  be  taxed  against  the  defend- 
ant in  cases  where  mere  nominal  damages  are  allowed."  In 
estimating  the  damages  for  an  infringement  of  a  patent,  the 
jurj'  have  a  large  discretion  from  the  very  nature  of  the  case, 
in  the  ascertainment  of  actual  damages,  although  they  should 
deduce  them  from  the  facts  and  circumstances  of  the  case  as 
proved.^ 

Justice  Story  thus  states  some  of  the- ingredients  for  the 
consideration  of  the  jury  in  estimating  damages:  "The  price 
of  the  machine,  the  nature,  actual  state,  and  extent  of  the  use 
of  the  plaintiff's  invention,  and  the  particular  loss  to  which 
he  may  have  been  subject  by  the  piracy,  are  all  proper  ingre- 
dients to  be  weighed  by  the  jury  in  estimating  the  damages, 
valei'e  quantum  valeat.  '* 

§  718-    The  Defendant  may  be  Required  to  Account. 

— And  where  the  defendant  has  been  guilty  of  an  infringe- 
ment of  a  patent,  and  the  circumstances  require  it,  the  court 

'  Schwazel  v.  Holenshade,  3  Fish.  (P.  C),  116.  See,  also,  Bell  v.  McCul- 
lough,  1  Bond,  194. 

'Stimpson  v.  The  Railroad,  etc.,  1  Wallace,  Jr.,  169;  2  Hill,  on  Torts,  .,45; 
Blanchard,  etc.,  v.  Warner,  1  Blatch.,  259;  Teese  v.  Huntington,  23  How. 
(U.  S.),  2;  Day  v.  Woodworth,  13  How.,  363. 

3  Bancroft  v.  Acton,  7  Blatch.,  505,  (1875). 

4  Merchant  v.  Lewis,  1  Bond,  172. 

s  City  of  New  York   v.   Ransom,   23  How.  (U.  S.),    487;    Schwazel  v. 
Holenshade,  supra. 
'  Opinion  of  Story,  J.,  in  Earle  v.  Sawyer,  4  Mason,  14. 


680  THE  LAW  OF  DAMAGES. 

Defendant  may  be  Required  to  Account. 

will  compel  him  to  render  an  account  of  the  articles  manufac- 
tured bj  him  in  violation  of  the  plaintiff 's  rights  under  his 
patent,  and  account  for  the  value  of  those  sold  bj  him,  and 
also  for  the  value  of  such  as  he  may  have  on  hand.' 

7  Holland  v.  Fox,  25  En^.  L.  &  Eq.,  69.  For  the  English  practice,  under 
the  Patent  Law  Amendment  Act,  see  15  and  16,  Vict.  C,  83.  When  by  a 
joint  resolution  of  Congress,  the  Court  of  Claims  was  required  to  investigate 
and  determine  whether  the  claimant  was  the  original  inventor  of  a  certain 
fuse,  and  of  a  percussion  device,  and  whether  he  was  entitled  to  a  just  and 
equitable  compensation  therefor,  and  what  amount  of  compensation  he  was 
entitled  to  recover,  and  the  court  found  that  he  was  the  original  inventor,  it 
necessarily  follows  that  he  has  a  just  and  equitable  right  to  compensation. 
This  right  must  be  determined  by  the  principles  and  considerations  which 
obtain  in  ordinary  cases  between  private  persons  and  parties  for  the  use  of 
inventions  and  infringements  of  patents.  But  the  damages  are  restricted 
within  the  amount  limited  in  the  act  referring  the  case  to  the  court.  Joint 
Resolution,  3d  June,  1864;  13  Stat,  at  L.,  p.  588;  Hubbel  v.  The  United 
States,  13  Court  of  C,  1. 


COPYKIGHTS  AND  TKADE-MAEKS.  581 

Provisions  of  the  Constitution— Power  of  Congress. 


CHAPTER  XXIX. 


COPYRIGHTS  AND  TRADE-MARKS. 

Section  720.  Provisions  of  the  Constitution— Power  of  Congress. 

721.  Damages— Books,  etc. 

722.  Damages— Maps,  Charts,  etc, 

723.  Damages— Dramatic  Compositions. 

724.  Different  Kemedies  for  an  Infringement. 

725.  Literary  Piracy. 

726.  Trade-Marks. 

727.  Damages  for  Infringement. 

§  720.  Provisions  of  the  Constitution— Power  of  Con- 
gress.— Closely  related  to  the  law  of  patent  rights,  is  that  of 
copyrights.  This  is  the  property  which  an  author  has  in  his 
•work  secured  to  him  for  a  limited  period,  by  law.*  The  constitu- 
tion of  the  United  States  gives  to  Congress  power  "  to  promote 
the  progress  of  science  and  the  useful  arts,  by  securing  for 
limited  times,  to  authors  and  inventors,  the  exclusive  right  to 
their  respective  writings  and  discoveries.'"  And  in  England, 
as  well  as  in  this  country,  it  has  been  claimed  that  this  right 
exists  at  common  law.'     Pursuant  to  constitutional  authority 

» Bouv.  L.  D. 

»  Art.  1,  Sec.  8,  Const,  of  U.  S. 

3  MiU'er  v.  Taylor,  4  Burrow,  2303;  Palmer  v.  DeWitt,  47  N.  Y.,  532; 
Short  on  Law  of  Literature,  48;  Opinion  Ld.  Brougham,  Jeffrys  v.  Boosey, 
30  Eng.  L.  &  Eq.,  1 ;  4  H.  L.  C,  978.  It  would  appear,  on  general  principles, 
eminently  just  and  proper  to  recognize  a  right  to  intellectual  property  as  a 
common  law  right;  if  not,  we  should  have  a  general  enactment  expressly 
recognizing  it  under  aU  circumstances.  See,  also,  Wheaton  v.  Peters,  8 
Pet.,  591. 


582  THE  LAW  OF  DAMAGES. 

Damages— Books,  Maps,  Charts,  etc. 

Congress  has  at  various  times  passed  acts  to  secure  to  and 
protect  authors  in  the  enjoyment  of  tlieir  productions,  and 
the  exclusive  right  of  future  enjoyment,  for  a  term  of  years.' 

§721.  Damages— Books,  etc. — The  existing  Act  of 
Congress  in  reference  to  damages  for  the  violation  or  infringe- 
ment of  a  copyright,  provides  as  follows:  "Every  person 
who  after  the  recording  of  the  title  of  any  book  as  provided 
by  this  chapter,  shall  within  the  term  limited,  and  without 
the  consent  of  the  proprietor  of  the  copyright  first  obtained 
in  writing,  signed  in  the  presence  of  two  or  more  witnesses, 
print,  publish,  or  import,  or  knowing  the  same  to  be  so  printed, 
published  or  imported,  shall  sell  or  expose  for  sale  any  copy 
of  such  book,  shall  forfeit  every  copy  thereof  to  such  proprie- 
tor, and  shall  also  forfeit  and  pay  such  damages  as  may  be 
recovered  in  a  civil  action,  by  such  proprietor  in  any  court  of 
competent  jurisdiction.'"  Under  the  provisions  of  this  sec- 
tion it  is  evident  the  complainant,  in  addition  to  books  for- 
feited, should  recover  his  actual  damages  sustained  by  the 
infringement. 

§  722.  Damages— Maps,  Charts,  etc.— The  Act  further 
provides:  "If  any  person,  after  the  recording  of  the  title  of 
any  map,  chart,  musical  composition,  print,  cut,  engraving  or 
photograph,  or  chromo,  or  of  the  description  of  any  paintmg, 
drawing,  statue,  statuary,  or  model  or  design  intended  to  be 
perfected  and  executed  as  a  work  of  the  fine  arts,  as  provided 
by  this  chapter,  shall  within  the  term  limited,  and  without 
the  consent  of  the  proprietor  of  the  copyright  first  obtained  in 
writing,  signed  in  the  presence  of  two  or  more  witnesses, 
engrave,  etch,  work,  copy,  print,  publish  or  import,  either  in 

5  These  copyrights  are  secured  to  authors  in  Great  Britain  and  most  of  the 
countries  of  Europe.  A  compliance  with  the  Acts  of  Congress  in  relation  to 
copyrights  is  indispensable  to  secure  the  protection  of  authorship.  Baker  v. 
Taylor,  2  Blatchf.,  82. 

6  Act  of  July  8,  1870,  Chap.  230,  §  99,  v.  16;  U.  S.  Rev.  Stat.,  1873-4, 
Chap.  3,  §  4964,  approved  June  20,  1874. 


COPYRIGHTS  AND  TRADE-MARKS.  583 


Damages— Dramatic  Composition— Different  Remedies  for  Infringement. 


whole  or  in  part,  or  bj  varying  the  main  design  with  intent  to 
evade  the  law;  or,  knowing  the  same  to  be  so  printed  pub- 
lished or  imported,  shall  sell  or  expose  to  sale,  any  copy  of 
such  map  or  other  article  as  aforesaid,  he  shall  forfeit  to  the 
proprietor  all  the  plates  on  which  the  same  shall  be  copied, 
and  every  sheet  thereof  either  copied  or  printed,  and  shall 
further  forfeit  one  dollar  for  every  sheet  of  the  same  found  in 
liis  possession,  either  printing,  printed,  copied,  published, 
imported  or  exposed  for  sale,  and  in  case  of  a  painting,  statue, 
or  statuary,  he  shall  forfeit  ten  dollars  for  every  copy  of  the 
same  in  his  possesion,  or  by  him  sold  or  exposed  for  sale,  one- 
half  thereof  to  the  proprietor  and  the  other  half  to  the  use  of 
the  United  States." ' 

§  723.  Damages— Dramatic  Composition.— In  reference 
to  damages  for  violating  the  copyright  of  dramatic  composi- 
tions, the  act  of  Congress  provides:  "Any  person  publicly 
performing  or  representing  any  dramatic  composition  for  which 
a  copyright  has  been  obtained,  without  the  consent  of  the  pro- 
prietor thereof,  or  his  heirs  or  assigns,  shall  be  liable  for  dam- 
ages therefor,  such  damages  in  all  cases  to  be  assessed  at  such 
sum,  not  less  than  ojie  hundred  dollars  for  the  first  and  lifty 
dollars  for  every  subsequent  performance,  as  to  the  court  may 
appear  to  be  just.'"  It  is  evident  that  the  same  general  prin- 
ciples in  this  case  would  be  applicable  in  determining  the 
amount  of  actual  damages  which  we  have  noticed  as  applica- 
ble in  assessing  damages  in  cases  of  the  infringement  of  patents. 

§724.    Diiferent  Remedies  for  an  Infringement.— 

Prof.  Greenleaf,  in  bis  work  on  evidence  asserts,  in  reference 

8  Id.,  §  4965. 

9  Id.,  Sec.  4966.  "Every  person  who  shall  print  or  pubhsh  any  manu- 
script whatever,  without  the  consent  of  the  author  or  proprietor  first  obtained, 
if  such  author  or  proprietor  is  a  citizen  of  the  United  States  or  resident 
therein,  shall  be  liable  to  the  author  or  proprietor  for  all  damages  occasioned 
by  such  injury."    Id.,  Sec.  4967. 


584  THE  LAW  OF  DAMAGES. 

Literary  Piracy -Trade-Marks. 

to  the  remedy  for  an  infringement  of  a  copyright,  as  follows: 
"The  remedy  for  an  infringement  of  a  copyright,  is  either  at 
law  by  action  for  the  statute  penalties,  or  by  an  action  on  the 
case  for  damages,  or  in  equity  by  a  bill  for  an  injunction.'"" 

§  725.  Literary  Piracy. — A  fair  and  real  abridgment,  or 
a  fair  quotation  made  in  good  faith,  is  not  a  violation  of  a 
copyright.  But  if  so  much  of  the  original  work  be  taken  as 
to  sensibly  diminish  its  value,  and  the  labors  of  an  author 
are  to  a  substantial  and  injurious  extent  appropriated,  it  is  a 
literary  piracy,  jpro  tanto^  for  which  the  party  injured  may 
recover  the  damages  sustained  thereby." 

But  our  inquires  must  be  confined,  in  this  connection,  mainly 
to  the  question  of  damages,  and  not  extend  to  a  general  con- 
sideration of  the  law  of  copyrights. 

It  may,  however,  be  proper  to  observe  that  the  most  usual 
and  effective  remedy  for  infringements  of  copyrights,  as  well  as 
patent  rights,  is  in  equity,  wliere  the  defendant  may  not  only 
be  compelled  to  account  for  damages  sustained  by  the  com- 
plainant on  account  of  the  infringement,  but  also  be  restrained 
by  injunction  from  further  publications  or  sales.'* 

§  726.  Trade-Marks.— The  law  protects  a  person  in  the 
exclusive  enjoyment  of  a  trade-mark  as  a  private  right  and 
interest,  independent  of  any  statutory  provision."  This  right 
is,  however,  in  this  county  also  secured  by  statute,  and  is  in  this 
respect  analogous  to  the  rights  of  a  party  under  both  a  patent 
and  copyright.  The  skill  and  ingenuity  of  a  party  are  fre- 
quently manifested  in  names,  signs,  brands,  labels,  words,  or 

'o2Greeiilf.  onEv.,§510. 

"  2  Greenlf.  on  Ev.,  §  514,  and  authorities  cited.  Story's  Ex'rs  v.  Hol- 
comb,  4  McLean,  306. 

12  Pierpont  v.  Fowle,  2  Woodb.  &  M.,  23;  Stevens  v.  Gladding,  17  How., 
447:  Stevens  v.  Cady,  2  Curt.,  200;  Bartlett  v.  Crittenden.  5  McLean.  32. 

•3  Taylor  v.  Carpenter,  11  Paige,  292;  Marsh  v.  Billings,  7  Cush.,  322; 
Stokes  v.  Landgraff,  17  Barb.,  608;  Christy  v.  Murphy,  12  How.  Pr.,  78;  Cor- 
win  V.  Daly,  7  Bos.,  222;  Upton  on  Trade-Marks,  199  (1860);  Hobbsv.  Fran- 
cais,  19  How.  Pr.,  567;  Taylor  v.  Carpenter,  3  Story,  458. 


COPYRIGHTS  AND  TRADE-MARKS.         585 

Trade-Marks. 

other  devices  used  to  advertise  or  designate  his  business  or 
goods,  or  place  of  business;  and  this,  not  only  as  regards 
mechanical  and  artistic  skill,  but  also  scientific  and  literary 
ability;  and  such  devices  or  trade-marks^  thus  first  adopted 
and  used  by  a  party,  become  his  exclusive  right,  and  no  other 
person  can  lawfully  appropriate  or  use  them." 

Names  and  devices  which  are  adopted  to  point  out  the  true 

'4  Gillott  V.  Esterbrook,  48  N.  Y.,  374  (1872);  Stokes  v.  Landgraff,  supra; 
Amoskeag',  etc.,  v.  Spear,  2  Sandf.,  599;  Coflfeen  v.  Brunton,  5  McLean,  256. 
By  a  recent  act  of  Congress  a  right  to  a  trade-mark  may  be  secured.  Act 
July  8,  1870,  Sec.  4937,  Stat,  at  L.,  963.  But  it  is  presumed  that  this  act 
does  not  affect  the  general  common  law  rights  of  a  party  in  that  respect. 
See,  as  to  the  effect  of  the  act  of  Congress  generally,  Topham  v.  Wilcox, 
14  Abb.  (N.  Y.)  Pr.  (N.  S.),  206. 

The  Act  of  Congress  relating  to  trade-marks  provides  as  follows:  "Any 
person  or  firm  domiciled  in  the  United  States,  and  any  corporation  created 
by  the  United  States,  or  any  state  or  territory  thereof,  and  any  person,  firm, 
or  corporation,  resident  of  or  located  in  any  foreign  country,  which  by 
treaty  or  convention  affords  similar  privileges  to  citizens  of  the  United 
States,  and  who  are  entitled  to  the  exclusive  use  of  any  lawful  trade-mark, 
or  who  intends  to  adopt  and  use  any  trade-mark  for  exclusive  use,  within  the 
United  States,  may  obtain  protection  for  such  lawful  trade-mark,  by  comply- 
ing with  the  following  requirements. 

First.  By  causing  to  be  recorded  in  the  Patent  OflBce,  a  statement  speci- 
fying the  names  of  the  parties  and  their  residences  and  place  of  business, 
who  desire  the  protection  of  the  trade-mark;  the  class  of  merchandise,  and 
the  particular  description  of  goods  comprised  in  such  class,  by  which  the 
trade-mark  has  been  or  is  intended  to  be  appropriated;  a  description  of  the 
trade-mark  itself,  with  fac-similes  thereof  showing  the  mode  in  which  it  has 
been  or  is  intended  to  be  appUed  and  used;  and  the  length  of  time,  if  any, 
during  which  the  trade-mark  has  been  in  use. 

Second.  By  making  payment  of  a  fee  of  twenty-five  dollars  in  the  same 
manner  and  the  same  purpose  as  the  fee  required  for  patents. 

Third.  By  complying  with  such  regulations  as  may  be  prescribed  by  the 
Commissioner  of  Patents.  (Sec.  4937,  Ch.  2,  Tit.  60,  Rev.  Stat.  U.  S., 
Approved,  June  20,  1874.) 

"  Any  person  who  shall  reproduce,  counterfeit,  copy,  or  imitate  any 
recorded  trade-mark,  and  affix  the  same  to  goods  of  substantially' the  same 
description,  properties,  and  quahties,  as  those  referred  to  in  the  registration, 
shall  be  liable  in  an  action  on  the  case  for  damages,  for  such  wrongful  use 
of  such  trade-mark,  at  the  suit  of  the  owner  thereof;  and  the  party  aggrieved 
shall  also  have  his  remedy  according  to  the  course  of  equity  to  enjoin  the 
wrongful  use  of  his  trade-mark  and  to  recover  compensation  therefor  in  any 


586  THE  LAW  OF  DAMAGES. 

Damages  for  Infringement. 

source  and  origin  of  a  manufactured  article,  possess  the  requisite 
characteristics  of  a  trade-mark,  and  property  therein  may  be 
acquired  by  their  adoption  and  use."  But,  it  has  been  lield, 
that  no  property  can  be  acquired  in  words,  marks,  or  devices, 
which  do  not  denote  the  goods,  ownership,  or  place  of  busi- 
ness of  a  party,  but  only  the  kind  and  quality  of  the  article 
in  which  the  party  deals,'" 

8  727.  Damages  for  Infringement. — In  case  of  viola- 
tion of  the  rights  of  another  by  the  use  of  his  trade-mark,  the 

court  having  jurisdiction  over  the  person  guilty  of  such  wrongi'ul  use." 
(Sec.  4942,  Id.) 

"No  action  shall  be  maintained  under  the  provisions  of  this  chapter  by 
any  person  claiming  the  exclusive  right  to  any  trade-mark  which  is  used  or 
claimed  in  any  unlawful  business,  or  upon  any  such  article  which  is  injuri- 
ous in  itself,  or  upon  any  trade-mark  wliich  has  been  fraudulently  obtained, 
or  which  has  been  formed  and  used  with  the  design  of  deceiving  the  public 
in  the  purchase  or  use  of  any  article  of  merchandise."     (Sec.  494^3,  Id.) 

"  Any  person  who  shall  procure  the  registry  of  any  trade-mark,  or  of  him- 
self as  the  o^vne^  of  a  trade-mark,  or  an  entiy  respecting  a  trade-mark  in 
the  Patent  Ofiice,  by  making  any  false  or  fraudulent  representation  or  decla- 
rations verbaly  or  in  writing,  or  by  any  fraudulent  means,  shall  be  liable  to 
pay  any  damages  sustained  in  consequence  of  any  such  registry  or  entry,  to 
the  person  injured  thereby,  to  be  recovered  in  an  action  on  the  case."  (Sec. 
4944,  Id.) 

"  Nothing  in  tliis  chapter  shall  prevent,  lessen,  impeach,  or  avoid  any 
remedy  at  law  or  in  equity,  which  any  party  aggrieved  by  any  wrongful  use 
of  a  trade-mark,  might  have  had  if  the  provisions  of  this  chapter  had  not 
been  enacted."    (Sec.  4945,  Id.) 

"  Nothing  in  this  chapter  shaU  be  construed  by  any  court  as  abridging  or 
in  any  manner  affecting  unfavorably  the  claim  of  any  person  to  any  trade- 
mark after  the  expiration  of  the  term  for  which  such  trade-mark  was  regis- 
tered."    (Sec.  4946,  Id.) 

's  FiUey  v.  Fassett,  44  Mo.,  168  (1869).  Compare  Ferguson  v.  Davol  Mills, 
2  Brews.  (Pa.),  314;  Dixon  Crucible  Co.  v.  Guggenheim,  2  Brews.  (Pa.),  321 
(1869). 

'S  Ferguson  v.  Davol  MUls,  2  Brews.,  314.  See,  also,  (-hoynski  v.  Cohen, 
39  Cal.,  501;  GiUott  v.  Kettle,  3  Duer,  624;  Stonebreakerv.  Stonebreaker,  33 
Md.,  252  (1870);  Hostetter  v.  Vowinkle,  1  DUl.,  329.  See,  also,  for  the  use 
of  mdividual  names  as  trade-marks,  Meneely  v.  Meneely,  12  Albany  L. 
Jour.,  220,  in  N.  Y.  Court  of  Appeals  (1875);  Candee  v.  Deere,  .54  111.,  439. 
But  no  protection  will  be  given  where  the  trade-mark  is  intended  to  deceive 
the  pubHc.    Fetbridge  v.  Wells,  13  How.  Pr.,  389;  Hobbs  v.  Francais,  supra. 


COPYRIGHTS  AND  TRADE-MARKS.         587 

Damages  for  Infringement. 

common  remedy  is  by  injunction  to  restrain  the  use;  but  the 
wrongdoer  is  also  liable  in  damages  for  such  injury. 

The  measure  of  damages  in  such  cases  is,  indemnity  for  the 
injury  caused  thereby;"  and  the  plaintiff  may  recover  his 
loss  of  profits  on  sales,  sustained  in  consequence  of  the  defend- 
ant's sales,  under  plaintiff's  trade-mark."  So,  it  has  been 
held,  that  the  plaintiff  is  entitled  to  the  whole  profits  made  by 
the  defendant  on  the  sale  of  an  article  under  the  plaintiff's 
trade-mark.  In  a  recent  case  the  court  remarked:  "  It  is  more 
consonant  with  reason  and  justice,  that  the  owner  of  the  trade- 
mark should  have  the  whole  profit,  than  that  he  should  be 
deprived  of  any  part  of  it  by  the  defendant.'^  And  it  was 
stated  that,  in  such  a  case,  although  the  plaintiff  would  be  enti- 
tled to  such  profits  as  the  defendant  derived  from  the  piratical 
use  of  the  trade-mark,  these  might  not  constitute  all  the  dama- 
ges, as  the  spurious  article  thus  sold  might  have  injured  the 
sale  of  the  genuine  one.°°  And  the  plaintiff  is  entitled  to 
nominal  damages,  where  the  evidence  shows  an  infringement 
on  his  exclusive  right  to  the  mark,  without  proof  of  any  special 
damages  thereby."  So,  it  is  held  that  the  defendant  may  show 
want  of  knowledge  of  the  plaintiff's  ownership  of  the  trade- 
mark, and  of  any  intention  to  do  wrong;  and  that  he  made  a 
single  sale  of  the  simulated  article,  these  matters  being  im- 
portant on  the  question  of  damages.^' 

In  conclusion,  it  may  be  observed  that  the  general  doctrines, 
principles  and  methods  applicable  in  determining  the  dama- 
ges in  case  of  infringements  of  patents,  would  be  applicable  in 

17  Thompson  v.  Winchester,  19  Pick.,  214;  Marsh  v.  Billings,  9  Gush.,  330. 

'8  Taylor  v.  Carpenter,  2  Woodb.  &  M.,  1.  See,  also,  Colt  v.  Holbrook,  2 
Sand.,  Ch.  586;  Spottswood  v.  Clark,  2  Id.,  Ch.,  28.  But  see,  also,  of  qualifi- 
cation to  the  rule.  Leather  Cloth  Co.  v.  Heichfield,  1  Law  R.  (Eq.  Cases), 
299. 

'9  Graham  v.  Plate,  40  Cal.,  593. 

=0  Graham  v.  Slato,  supra.    See,  also,  Pitts  v.  Hall,  2  Blatchf.,  229. 

"  Burnett  V.  Phalon,  21  How.  Pr.,  157;  Blofield  v.  Payne,  4  B.  &  A.,  410. 

«  Faber  v.  D'Utassey,  11  Abb.  (N.  Y.)  Pr.,  (N.  S.)  399  (1871). 


688  THE  LAW  OF  DAMAGES. 

Damages  for  Infringement. 

determining  the  amount  of  damages  in  case  of  a  violation  of 
the  rights  of  the  proprietor  of  a  trade-mark,  whether  he  has 
complied  with  the  provisions  of  the  Act  of  Congress,  for  the 
purpose  of  securing  the  benefit  of  its  protection,  or  not.  By 
the  provisions  of  that  act,  the  rights  and  remedies  of  the  party 
at  common  law  are  expressly  reserved,  and  are  unajQfected  by 
the  statute. 


INJUEIES  TO  PEOPERTT— TKESPASS.        589 


Plan  of  this  Treatise— What  it  does  not  Embrace. 


CHAPTER  XXX. 


INJUKIES  TO  PROPERTY— TEESP ASS. 

Section  730.    Plan  of  Treatise— What  it  does  not  Embrace. 

731.  Trespass  Defined. 

732.  Damages  for  Trespass  to  Property— General  Principles. 

734.  Injury  to  Real  Estate. 

735.  Injuries  to  the  Possession  of  Eeal  Property. 

736.  Damages  for  Injuries  to  Trees. 

737.  Tenants— Injury  to  Rights  of. 

738.  Limit  to  Tenant's  Damages. 

739.  Profits- Sometimes  an  Element  of  Damages. 

741.  Aggravation— Exemplary  Damages. 

742.  "Water  Rights  and  Injuries  by  Water— General  Rule. 

743.  Limitation  of  Damages. 

744.  WTiere  a  Trespass  Benefits  as  well  as  Injures. 

746.  Mining— Rule  of  Damages. 

747.  Nuisance. 

748.  Rule  of  Damages. 

750.  Statutory  Provisions. 

751.  Waste— Damages. 

§  730.  Plan  of  this  Treatise  —  What  it  does  not 
Embrace . — The  plan  of  this  treatise  does  not  contemplate 
any  inquiry  into  the  forms  of  actions,  or  the  requisites  of 
pleadings  or  proofs  to  secure  a  party  a  complete  remedy  in 
actions  for  injuries  to  property,  except  as  they  may  be  inci- 
dentally connected  with  an  inquiry  into  the  proper  measure  of 
damages  in  such  cases.     Kor  does  it  necessarily  involve  any 


590  THE  LAW  OF  DAMAGES. 

Trespass  Defined. 

particular  inquiry  into  the  different  kinds  of  property  or 
rights  or  interests  therein,  or  the  mode  of  acquiring  the 
same.  These  inquiries  pertain  to  works  of  a  different  char- 
acter. 

§  731.  Trespass  Defined.— The  term  trespass,  in  hiw, 
is  very  comprehensive — a  nomen  generalissimum,  for  a  great 
variety  of  injuries.  It  has  been  defined  as  an  unlawful  act 
committed  with  violence,  vi  et  armis,  to  the  person,  property, 
or  relative  rights  of  another.'  And  again,  it  is  defined  more 
comprehensively  by  Blackstone,  as  follows:  "Trespass  in  the 
most  extensive  sense,  signifies  any  transgression  or  offense 
against  the  law  of  nature,  or  society,  or  of  the  country  in 
which  we  live;  whether  it  relates  to  a  man's  person  or  his 
propert}'.  Therefore,  beating  another  is  a  trespass,  taking  or 
detaining  a  man's  goods,  are  respectively  trespasses;  for  which 
an  action  of  trespass,  vi  et  armis,  or  on  the  case  in  trover  and 
conversion,  is  given  by  the  law;  so,  also,  non-performance  of 
promises  or  undertakings  is  a  trespass,  upon  which  an  action 
of  trespass  on  the  case  in  assumpsit  is  grounded;  and  in  gen- 
eral any  misfeasance  or  act  of  one  man,  whereby  another  is 
injuriously  treated  or  damnified,  is  a  transgression  or  trespass 
in  its  largest  sense."^ 

In  this  extensive  signification  the  word  is  used  in  the  Code 
promulgated  by  Moses,  as,  "  if  thy  brother  trespass,"  etc.,  and 
"  if  thy  neighbor  trespass,"  etc.  But  in  its  more  restricted 
sense,  trespass  signifies  an  unlawful  entry  upon  real,  or  the 
taking  of  personal  property  of  another,  or  an  interference  with 
any  legal  right  of  another  therein,  or  any  injury  committed 
with  violence  to  the  person  of  another. 

"We  have  considered,  to  some  extent,  the  law  of  damages 
arising  from  injuries  to  the  person,  and  will  now  proceed  to 
consider  such  as  relate  to  property. 

'  Bouv.  Law  Die. 

»  Black.  Com.,  B.  3,  p.  208. 


INJUKIES  TO  PKOPERTY— TKESPASS.        691 

Damages  for  Trespass  to  Property— General  Principles. 

§  732.  Damages  for  Trespass  to  Property— General 
Principles- — It  may  be  stated  as  a  general  rule,  that  in  an 
action  of  trespass,  the  plaintiiF  may  recover  for  all  such  dama- 
ges as  necessarily  result  from  the  trespass ;  that  "  every  person 
who  does  a  wrong  is  at  least  responsible  for  all  the  mischiev- 
ous consequences  that  may  reasonably  be  expected  to  result 
under  ordinary  circumstances  from  such  misconduct."^  So, 
"  a  man  who  officiously  presumes  to  interfere  with,  or  make  use 
of  the  property  of  another  without  his  permission,  is  liable  for 
all  the  consequences  of  such  interference,  whether  he  intended 
any  injury  to  the  owner  or  not."  '  Thus,  in  an  action  to  recover 
damages  for  unlawfully  taking  property,  the  owner  may  recover 
for  loss  of  time  necessarily  and  reasonably  expended  in  search- 
ing for  tlie  property  as  well  as  expenses  thereby  incurred,  in 
addition  to  the  value  of  the  property  and  interest  on  the  same." 

So  in  trespass  quare  clausum  fregit,  where  the  defendant's 
sheep  trespassed  upon  the  close  of  the  plaintiff  and  commin- 
gled with  his  sheep,  it  was  held  that  the  plaintiff  was  entitled 
to  recover  as  an  item  of  damages,  the  injury  sustained  by 
reason  of  their  being  diseased;  and  the  knowledge  of  the 
defendant  thereof,  was  held  immaterial,  except  to  increase 
damages.^ 

So,  "where  one  does  an  illegal  or  mischievous  act  which  is 
likely  to  prove  injurious  to  others,  or  when  he  does  a  legal  act 
in  sucli  a  careless  and  improper  manner  that  injury  to  a  third 
person  may  ensue,  he  is  answerable  in  some  form  of  action, 
for  all  the  consequences  which  may  directly  and  naturally 
result  from  his  conduct."  ^ 

§  733.  This  proposition  is  stated  in  another  form  by  Mr. 
Hilliard,  namely:  "That  where  the  consequences  of  an  unlaw- 

3  Per  Pollock,  C.  B.,  in  Rigby  v.  Hewitt,  5  Exch.,  243. 

4  Wright  V.  Gray,  2  Bay,  464. 

5  McDonald  v.  North,  47  Barb.  (N.  Y.),  530. 
*  Bamum  v.  Van  Dusen,  16  Conn.,  200. 

1  Vandenburgh  v.  Truax,  4  Denio,  464. 


592  THE  LAW  OF  DAMAGES. 

Injui*y  to  Real  Estate. 

ful  act  are  immediate,  he  that  does  the  unlawful  act  is  con- 
sidered the  immediate  doer  of  all  that  directly  follows.  He 
is  the  causa  causans^  and  a  trespasser.  And  it  is  enough  to 
show  that  the  injury  is  part  of  a  'chain  of  effects'  resulting 
from  the  act  complained  of."  * 

§  734.  Injury  to  Real  Estate.— In  trespass  for  cutting 
and  carrying  away  soil,  actual  compensation  only  should  be 
given  as  damages,  if  there  are  no  circumstances  of  aggravation 
connected  with  the  trespass.  "Where  the  injury  is  slight,  the 
expense  of  restoring  the  soil  would  be  a  proper  amount.  But 
if  the  injury  is  extensive  and  the  expense  of  restoring  the  soil 
would  exceed  the  value  of  the  premises  injured,  immediately 
before  the  trespass  was  committed,  the  difference  between  the 
value  of  the  land  before  and  after  the  injury  should  be  recov- 
ered; and  where  they  are  rendered  useless  by  the  trespass, 
then  the  value  of  the  land  should  be  recovered.  The  plaintiff 
should  in  no  case  recover  more  damage  than  he  has  sustained, 
nor  more  than  the  value  of  the  land,  unless,  perhaps,  where 
the  circumstances  warrant  the  assessment  of  exemplary  dama- 
ges." 

But  where  the  defendant  had  destroyed  the  sluiceway  to 
a  mill,  in  an  action  for  damages  therefor  the  defendant  was 
held  not  only  liable  for  the  sluiceway  destroyed,  but  for  the 
consequential  damages  to  the  plaintiff  in  being  thereby  de- 
prived of  the  use  of  the  mill."  And  for  such  an  injury  he 
should  recover  the  value  of  the  use  of  the  mill  during  the 
period  he  was  thus  deprived  of  the  use  of  the  same.  This 
would  ordinarily  be  its  fair  rental  value  for  the  time  he  was 

8  Hill,  on  Torts,  85,  citing,  Holmes  v.  Watson,  29  Penn.,  457;  Burdick  v. 
Worrell,  4  Barb.,  596. 

9  Jones  V.  Gooday,  8  M.  &  W.,  146;  Muller  v.  St.  Louis,  etc.,  R.  Co.,  31 
Mo.,  262;  Stockbridge  Iron  Co.  v.  Cone  Iron  Works,  102  Mass.,  80. 

'0  Hammot  v.  Russ,  16  Me.,  171.  See,  also,  Tarlton  v.  McGawley,  Peaks 
(N.  P.  C),  205;  Hosking  v.  PhilUps,  3  Exch.,  168;  Lukin  v.  Godsall, 
Peake,  Ad.  C,  15. 


IISTJUEIES  TO  PROPERTY— TEESPASS.        593 

Injuries  to  the  Possession  of  Real  Property— Damages  for  Injuries,  etc. 

necessarily  so  deprived.  In  such  cases,  however,  the  injured 
party  cannot  recover  for  such  losses  as  might  have  been 
avoided  by  him,  by  the  use  of  reasonable  care  and  means  on 
his  part.  This  qualification  we  have  already  fully  considered." 
An  unauthorized  entry  on  the  land  of  another,  is  a  trespass 
for  which  at  least  nominal  damages  can  be  recovered,  even 
though  this  may  be  shown  to  have  been  beneficial  to  the 
owner."  So,  any  violation  of  a  right  makes  the  wrongdoer  a 
trespasser  for  which  at  least  nominal  damages  can  be  recov- 
ered of  the  wrongdoer,  in  order  to  vindicate  the  right  which 
has  been  infringed,  and  such  further  damages  as  may  actually 
have  been  sustained  by  the  wrong. 

§  735.     Injuries  to  the  Possession  of  Real  Property. 

— The  owner  of  lands  may  recover  from  a  disseizor  the  value 
of  the  use  and  occupation  of  the  lands,  but  he  cannot  recover 
the  crops  grown  by  the  disseizor  while  the  owner  was  out  of 
possession."  And  where  there  are  several  guilty  of  a  joint 
trespass  they  are  liable  for  damages,  estimated  according  to 
the  liability  of  the  most  culpable  of  either  of  the  joint  tres- 
passers,'* 

§  736.  Damages  for  Injuries  to  Trees.— The  rule  of 
damages  in  case  of  the  cutting  down  and  carrying  away  of 
forest  trees,  would  ordinarily  be  at  least  the  value  of  the  tim- 
ber or  wood,  at  the  time  when  and  the  place  where  they  were 
first  cut  and  became  chattels.'*     But  if  fruit  or  ornamental 

"  See,  ante.  Chap.  8. 

"  Parker  v.  Griswold,  17  Conn.,  288;  Murphy  v.  The  City  of  Fon  Du  Lac, 
23  Wis.,  365. 

'3  Page  V.  Fowler,  39  Cal.,  412  (1870). 

M  Berry  V.  Fletcher,  1  DiU.  (C.  C.  R.),  67;  2  Stark  Ev.,  807;  2  Hill,  on 
Torts,  464. 

'S  Bennett  v.  Thompson,  13  Ired,  (N.  C.)  L.,  146;  Moody  v.  Whitney,  38 
Me.,  174;  Smith  v.  Gonder,  22  Geo.,  353;  Cushing  v.  Longfellow,  26  Me., 
306.  But  in  Chipman  v.  Hibbard,  6  Cal.,  162,  it  was  held  that  the  damage 
should  be  for  the  injury  to  the  land.  See,  also,  Coxe  v.  England,  65  Pa.  St., 
212;  Young  V.  Lloyd,  65  Id.,  199. 
38 


594  THE  LAW  OF  DAMAGES. 


Tenants— Injuries  to  Rights  of. 


trees  are  cut  down  or  destroyed,  the  damages  would  not  be 
limited  to  the  value  of  the  same  for  wood  or  timber,  or  for 
manufacturing  purpose,  but  should  be  assessed  under  ordinary 
circumstances  at  the  value  of  the  trees  for  the  purposes  for 
which  they  were  designed  and  useful,  under  all  the  circum- 
stances of  the  case."  And  where  a  person  in  good  faith 
cuts  timber  on  vacant  land  believing  it  to  be  his  own,  the 
damages  should  be  only  for  the  actual  loss  sustained  thereby.'' 
And  the  value  of  the  timber  should  be  determined  by  the 
price  of  timber  in  the  vicinity,  and  not  by  the  net  value  of  the 
logs  cut  from  the  timber  at  a  distant  market.* 

Nor  is  it  any  defense  to  an  action,  or  mitigation  of  damages, 
that  the  trees  wrongfully  cut  down  tended  to  make  the  plain- 
tiff's house  damp  and  unhealthy.' 

§  737.  Tenants— Injury  to  Rights  of.— The  measure  of 
damages  will  of  course  vary  with  the  value  or  character  of  the 
interest  held  or  owned  by  the  plaintiff.  Thus,  the  owner  of 
the  freehold  can  recover  for  injuries  that  permanently  affect 
the  same,  whereas  a  tenant  can  only  recover  damages  for  the 
injury  to  his  temporary  use  and  occupation  of  the  premises, 
and  enjoyment  of  them.'"  But,  the  tenant  may  recover  for 
whatever  damage  he  sustains,  by  interference  with  his  posses- 
sion, although  the  same  wrongful  act  also  injures  the  freehold. 
Thus,  where  the  defendant  in  blasting  rocks,  on  his  own  land, 
threw  them  on  an  adjoining  lot  occupied  by  the  plaintiff  as 
tenant,  and  continued  the  operation  until  he  split  a  rock  in 
said  premises  and  undermined  the  house  situated  thereon;  it 
was  held,  that  the  defendant  was  liable  to  the  plaintiff  for  the 

«  WWtbeck  V.  N.  Y.  Cen.  R.  Co.,  36  Barb.,  644. 

7  Yahola,  etc.,  Mining  Co.  v.  Isby,  40  Geo.,  479;  Perkins  v.  Hackleman,  26 
Miss.,  41.    See,  also,  Jefcoat  v.  Knotts,  13  Rich.  (S.  C.  L.),  50. 

8  Coxev.  England,  65  Pa.  St.,  212  (1870). 

9  Bliss  V.  Ball,  99  Mass.,  597. 

'o  GHbert  v.  Kennedy,  22  Mich.,  117  (1870);  Seely  v.  Alden,  61  Pa.  St.,  302. 


INJURIES  TO  PROPERTY— TRESPASS.        595 

Limit  to  Tenant's  Damages— Profits  Sometimes  an  Element  of  Damages. 

loss  sustained  thereby.'  And  it  is  evident  that  the  landlord 
or  reversioner  could  also,  in  such  a  case,  recover  his  actual 
losses  sustained. 

§  738.  Limit  to  Tenant's  Damages.— The  maximum 
limit  of  the  tenant's  rij^ht  to  damages,  ordinarily  would 
be  the  value  of  his  lease,  taking  into  account  the  rent  reserved. 
But  where  it  appears  that  by  the  terms  of  his  lease  he  is  bound 
to  restore  the  premises  in  as  good  a  condition  as  when  tliey  were 
received,  the  damages  would  not  be  thus  limited,  and  might 
greatly  exceed  the  value  of  the  lease.  And  in  such  a  case,  his 
damages  would  at  least  be  the  amount  required  to  restore  the 
premises  to  the  condition  they  were  in  before  the  injury, 
where  that  would  not  exceed  the  total  value  of  the  premises." 
In  an  action  by  a  termor  against  a  revisioner  for  a  trespass,  it 
has  been  held,  that  the  plaintiff  should  recover  his  actual  loss 
sustained ;  but  if  the  action  is  against  a  stranger  and  wrongdoer, 
the  termor  is  entitled  to  recover  the  full  amount  of  the  injury 
to  the  property,  he  being  treated  as  the  owner.' 

§739.    Profits  Sometimes  an  Element  of  Damages. 

— The  profits  of  business  are  sometimes  allowed  as  an  element 
of  damages  in  actions  for  trespasses.  Thus,  in  an  action 
against  a  city  for  injuries  to  the  plaintifPs  manufactory,  caused 
by  street  excavations,  the  plaintiff  was  allowed  to  recover  for 

'  Id.    See,  also,  Goudierv.  Cormack,  2  E.  D.  Smith,  (N.  Y.),  C.  P.  R.,  200. 

»  Walter  v.  Post,  4  Abb.  Pr.  R.,  382;  s.  c.  6  Duer,  363. 

3  Harker  V.  Dement,  9  Gill.,  7.  See,  also,  Greer  v.  The  Mayor  of  New- 
York,  1  Abb.  (N.  Y.),  Pr.  R.  (N.  S.),  206,  which  was  an  action  for  the  loss  of 
a  life  estate,  and  where  it  was  held,  that  the  damages  should  be  determined 
by  multiplying  the  annual  value  of  the  rents  and  profits  of  the  premises  by 
the  probable  number  of  years  of  the  plaintiff's  life,  and  deducting  the 
amount  of  taxes,  repairs,  insurance,  and  a  rebate  of  interest.  The  expect- 
ancy of  life  could  be  determined  by  life  tables.  See,  also,  Todd  v.  Jackson, 
2  Dutcher,  (N.  J.),  525;  Dutro  v.  Wilson,  4  Ohio  St.,  101;  BathishiU  v.  Reed, 
37  Eng.  L.  &  E.,  317;  Smith  v.  Peat,  9  Exch.,  161;  Tinsman  v.  The  Belve- 
dere, etc.,  R.  Co.,  1  Dutch.,  N.  J.,  255;  Tucker  v.  Newman,  11  Aid.  &  EUis, 
40;  Young  v.  Spencer,  10  B.  &  C,  145. 


596  THE  LAW  OF  DAMAGES. 

Aggravation— Exemplary  Damages. 

loss  of  profits  of  his  business,  necessarily  resulting  from  the 
work  clone  by  tlie  corporation."  So,  where  a  toll  bridge  was 
carried  away  through  the  defendant's  fault,  it  was  held,  that 
the  amount  of  tolls  which  would  have  been  received  during 
the  time  reasonably  required  to  rebuild  the  bridge,  should  be 
included  in  the  damages.^ 

§  740.  And  in  an  action  of  trespass  quare  clausum  f regit , 
if  the  actual  entry  was  effected  by  breaking  down  a  fence? 
*  this  is  a  proper  item  of  damage."  And  where  excavations 
were  wrongfully  made  by  the  defendant  on  liis  own  land 
adjoining  the  plaintift"'s,  whereby  the  plaintiff  sustained  an 
injury  to  his  land,  it  was  held,  that  the  measure  of  damages 
was  not  what  it  would  cost  to  restore  the  lot  to  its  former  con- 
dition or  build  a  wall  to  support  it,  but  the  amount  by  which 
the  value  of  the  lot  was  diminished,  by  reason  of  the  wrong- 
ful acts  of  the  defendant.' 

For  the  purpose  of  determining  the  amount  of  damages  the 
jury  may  not  only  consider  the  violation  of  the  plaintiff's  rights 
and  the  manner  in  which  it  was  done,  but  any  actual  incon- 
venience and  expense  resulting  directly  from  the  unlawful  act' 
Thus,  in  an  action  for  damages  for  ohtsructions  which  injured 
the  plaintiff  in  his  business,  by  diminishing  his  custom  and 
by  loss  of  customers,  the  loss  of  custom  and  profits  thereby 
were  considered  proper  items  of  damages." 

§  741 .    Aggravation— Exemplary  Damages.— Where 

the  trespass  is  willful  and  malicious,  or  is  committed  under 

4  Lacour  v.  New  York,  3  Duer,  406. 

s  Sewalls  v.  Fisk,  3  Fost.  (N.  H.),   171.    See,  also,  the  same  doctrine  in 
Ludlow  V.  The  ViUage  of  Yonkers,  43  Barb.  (N.  Y.),  493. 
fi  Clark  V.  Boardman,  42  Vt.,  667. 

7  McGuire  v.  Grant,  1  Dutch.  (N.  J.),  356,  et  seq. 

8  White  V.  Suttle,  1  Swan.  (Tenn.),  169.  See,  also,  Freeland  v.  The  City 
of  Muscatme,  9  la.,  461. 

9  St.  John  V.  The  Mayor,  etc.,  New  York,  13  How.  Pr.  R.,  527;  6  Duer, 
315.  But  loss  of  profits  from  an  illegal  business  cannot  be  included.  Kane 
V.  Johnson,  9  Bosw.  (N.  Y.),  154. 


INJUEIES  TO  PROPERTY— TKESPASS.        59' 


Water  Kigbts  and  Injuries  by  Water— General  Rule. 


circumstances  involving  unavoidable  injury  to  persons  and 
property,  the  trespasser  is  responsible  to  any  person  injured 
by  such  trespass  to  the  full  extent  of  such  injury,  and  as  we 
have  seen,  may  be  liable  for  exemplary  damages,  even  though 
the  wrongdoer  did  not  contemplate  the  particular  injury  which 
ensued.'" 

§  742.  Water  Rights  and  Injuries  by  Water— Gen- 
eral Rule. — The  same  general  rules  apply  where  the  injury 
is  to  water  rights,  or  from  water,  which  we  have  noticed  as 
applicable  in  cases  of  other  injuries  to  real  estate.  The  gen- 
eral rule  in  such  cases  is  that  where,  by  the  wrongful  act  of 
the  defendant,  the  lands  of  the  plaintiff  have  been  injured  by 
overflow,  or  his  rights  and  privileges  in  a  stream  of  water  have 
been  abridged  or  destroyed,  he  may  recover  as  damages,  where 
the  injury  is  less  than  the  total  destruction  of  his  rio-hts  but 
of  a  permanent  character,  the  difference  between  the  value  of 
the  property  or  rights  before  the  injury  and  immediately  after.' 

Where,  however,  the  injury  is  of  a  slight  or  temporary 
character,  the  rule  would  be  different.  In  such  a  case  it 
would,  on  general  principles,  be  the  duty  of  the  injured  party, 
as  we  have  seen,'  to  use  reasonable  care  to  protect  himself 
from  injury;  and  he  could  only  recover  such  damages  as  could 
not  thus  be  avoided,  together  with  the  reasonable  expenses, 
and  value  of  time  spent  for  this  purpose.  Thus,  wliere, 
through  the  wrongful  act  of  the  defendant,  the   plaintiff  has 

•0  Manger  v.  Baker,  65  Barb.  (N.  Y.).  539  (1873);  Drusee  v.  Wheeton,  22 
Mich.,  4:39;  Fai-well  v.  Warren.  51  111.,  467.  See.  also,  ante,  §  71,  et  seq; 
Trent  V.  Barber,  7  Conn.,  274;  Churchill  v.  Watson,  5  Day  (Conn.),  14o'; 
Schindel  v.  Schindel,  12  Md.,  108;  Snively  v.  Fahnstock,  18  Md.,  391;  WHey 
V.  Smitherman,  8  Ired.  (N.  C.  L.),  236;  Wilkins  v.  (iihnore,  2  Humph.  (Tenn.), 
140.  In  case  of  a  trespass  under  an  honest  behef  of  a  right,  no  exemplary 
damages  can  be  awarded.    Hillman  v.  Bamback,  21  Tex.,  203. 

'  Schuylkill  Navigation  Co.  v.  Farr,  4  Watts  &  S.,  362;  Unden^^ood  v. 
North  Wayne  Scythe  Factory,  38  Me.,  75;  Bryant  v.  Glidden,  36  Me.,  36; 
Lawrence  v.  The  Great  Northern  R.  Co.,  16  Q.  B.,  643. 

=»  See,  ante,  §  126,  et  seq. 


598  THE  LAW  OF  DAMAGES. 

Limitation  of  Damages. 

been  temporarily  deprived  of  the  use  of  a  water  power,  the 
value  of  the  right,  during  the  period  he  has  been  deprived 
thereof,  v/ould  usually  constitute  the  damages.'  And  where, 
by  the  wrongful  act  of  the  defendant,  the  plaintiff's  dam  or 
mill  has  been  injured  or  destroyed,  or  the  stream  or  pond  fur- 
nishing his  power  has  been  injured  or  obstructed,  the  usual 
measure  of  damages  is  the  cost  and  expense  of  restoring  the 
same  to  its  former  condition,  and  the  loss  occasioned  by  being 
deprived  of  the  use  of  the  same,  or  by  their  diminished  effi- 
ciency, or  impaired  condition,  and  any  loss  from  a  permanent 
injury  thereto,  with  interest  on  the  same.* 

§  743.  Limitation  of  Damages.—  In  case  of  a  par- 
tial or  total  destruction  of  property,  through  the  defend- 
ant's fault,  he  is  not  always  ref|uired  to  pay  the  full 
amount  that  would  be  necessary  to  restore  the  property, 
to  its  former  condition.  This  would  not  be  the  case,  as  we 
have  observed,  where  the  expense  of  repairing  or  restoring 
the  injured  property  to  its  original  condition  would  exceed 
the  original  value  of  the  property,  or  its  value  after  it  was 
restored.  And  whenever  the  restoration  of  the  injured  prop- 
erty to  the  condition  it  was  in  before  the  injury,  would  cost 
more  than  the  value  of  the  land  before  the  injury,  then  the 
difference  between  the  value  before  and  after  the  injury  con- 
stitutes the  true  measure  of  damages;  but  where  it  would  cost 
less  than  the  difference  in  value  before  and  after  the  injury, 
then  the  cost  of  restoration  would  ordinarily  be  the  measure  of 
damages,  not  however,  exceeding  the  value  of  the  lands.'  Thus, 
where  by  the  wrongful  act  of  a  person,  water  is  let  in  upon 
and  overflows  the  land  of  another,  the  expense  of  removing 
the  water  may  far  exceed  the  difference  between  the  value 

sPollet  V.  Long,  58  Barb.  (N.  Y.),  20;  Reynolds  v.  Chandler  £iv.  Co.,  43 
Md.,  513. 

4  O'Remy  V.  McChesney,  3  Lans.  (N.  Y.),  278;  Walrath  v.  Redfield,  11 
Barb.  (N.  Y.),  368;  18  N.  Y.,  457;  Spigelmoyer  v.  Walter,  3  W.  &  S.,  540. 

s  Seely  v.  Alden,  61  Pa.  St.,  302;  Bates  v.  Ray,  102  Mass.,  458. 


mJUEIES  TO  PEOPERTY— TEESPASS.        599 


Where  Trespass  Benefits  as  well  as  Injures. 


before  and  after  the  overflow,  or  the  value  of  the  land  over- 
flowed. It  maj  involve  the  necessity  of  extensive  and  expen- 
sive engineering,  and  an  outlay  for  that  purpose  of  ten  times 
the  value  of  the  land.  In  such  a  case  the  wrongdoer  should 
not  be  compelled  to  pay  the  necessary  expense  of  restorino- 
the  land  to  the  condition  it  was  in  before  the  overflow;  but 
only  for  the  actual  damage  done.  If  the  land  is  rendered 
jDractically  useless  and  of  no  value,  then  the  damages  should 
be  the  value  of  the  land,  and  no  raore.° 

§  744.  Where  a  Trespass  Benefits  as  well  as  Injures. 

— When  the  wrongful  act  of  a  defendant  produces  some  bene- 
fit, as  well  as  injury,  to  the  plaintiflTthe  defendant  may  claim 
the  benefits  conferred  in  reduction  or  mitigation  of  damao-es. 
But  where  the  defendant  is  allowed  for  such  benefits  conferred, 
they  should  at  least  be  confined  to  such  as  result  from  the 
immediate  trespass  or  wrong  done,  of  which  the  plaintiff  com- 
plains. Thus,  in  Massachusetts,  in  an  action  for  daraao-es 
caused  by  the  filling  of  the  defendant's  land  lying  adjacent  to 
the  plaintiff's,  whereby  the  flow  of  water  from  the  plaintiff's 
land  had  been  obstructed,  the  jury  were  instructed  that  if  they 
were  satisfied  that  the  filling  had  actually  benefitted  the 
plaintifi''s  estate  in  any  particular,  they  should  in  assessino- 
the  damages  make  allowance  for  such  benefit,  and  give  the 
plaintiff  such  sum  only  as  damages,  as  they  found  upon  the 
evidence  would  fully  indemnify  and  compensate  him,  under  all 
the  circumstances,  for  the  damages  he  had  sustained;  and  this 
instruction  was  held  correct.' 

And  in  the  same  State,  in  an  action  for  damages  for  an 
overflow  caused  by  a  dam,  it  was  held  that  the  allowance  for 
benefits  thereby  received  by  the  plaintiff,  should  be  confined 

6  Jones  V.  Gooday,  8  Mees.  &  Wells,  146;  Mueller  v.  St.  Louis  &  Iron 
Mountain  R.  Co.,  31  Mo.,  262;  Stockbridge  Iron  Co.  v.  Cone  Iron  Works 
102  Mass.,  80. 

7  Luther  v.  The  Winnisimmet  Man.  Co.,  9  Cush.,  171.    See,  also,  to  the 
same  effect,  Bower  v.  Merrill,  3  Chand.  (Wis.),  46. 


600  THE  LAW  OF  DAMAGES. 


Where  Trespass  Benefits  as  well  as  Injures. 


to  the  overflow  itself,  and  could  not  be  extended  to  those  inci- 
dentally received  frotn  the  defendant's  operations  in  other 
respects;  and  that  the  benefit  which  the  plaintitF  derived  from 
a  ditch  made  by  the  defendant  to  conduct  water  from  the  pond 
to  the  dam,  could  not  be  set  off  against  damages  from  an  over- 
flow caused  by  the  dam  after  its  erection.'  So  in  the  same 
state,  it  was  held,  that  where  a  riparian  proprietor  obstructs  a 
river  and  thereby  causes  the  water  to  set  back  so  as  to  damage 
another  pro])rietor,  he  cannot,  in  an  action  by  the  latter  for 
the  injury  thus  caused,  offset  the  benefit  which  the  plaintiff 
derived  from  the  removal  of  certain  obstructions  in  the  river 
by  the  defendant,  at  another  time  and  place." 

In  an  action  for  damages  for  flowing  lands,  caused  by  an 
embankment  of  a  railroad  company  in  the  construction  of  its 
railroad,  the  jury  were  instructed  that  the  rule  of  damages  was 
the  difference  between  the  value  of  the  plaintiff's  premises 
before  the  injury  happened,  and  the  value  of  the  same  imme- 
diately after;  and  this  was  held  correct.'" 

§  745.  And  where,  by  reason  of  the  unskillful  construction 
of  a  railway  embankment,  the  plaintiff's  lands  were  flooded, 
and  they  would  have  been  flooded  in  a  less  degree  had  the 
embankment  not  been  so  constructed;  it  was  held,  that  the 
measure  of  damages  was  the  difference  between  the  value  of 
the  lands  as  they  would  have  been  flooded  if  the  embankment 
had  been  properly  constructed,  and  their  value  as  they  were 
in  fact  flooded  by  the  wrongful  act  of  the  defendant."  And 
where  damages  are  sustained  by  the  wrongful  act  of  another, 
in  raising  his  mill-dam,  whereby  the  mill  of  another  higher 

sGHe  V.  Stevens,  13  Gray  (Mass.),  146. 

9  Talbot  V.  Whipple,  7  Gray  (Mass.),  122.  See,  also,  Gerrish  v.  The  New- 
market Man.  Co..  10  Fost.  (N.  H.),  478. 

'°  Chase  v.  The  New  York  Cent.  R.  Co.,  24  Barb.  (N.  Y.),  273;  Ester- 
brook  V.  Erie  R.  Co.,  51  Id.,  94.  See,  also,  The  Chicago,  etc.,  Dock  Co.  v. 
Dunlop,  32  m.,  207. 

"  Workman  v.  The  Great  Northern  R.  Co.,  22  Law  J.  (N.  S.),  Q.  B.,  279. 


INJURIES  TO  PEOPERTY— TRESPASS.        601 


Mining— Rule  of  Damages. 


up  the  stream  is  interrupted  bj  backwater,  the  decrease  in  the 
profits  of  the  mill,  caused  by  such  interruption,  was  held  to 
be  the  measure  of  damages.' 

So,  in  Iowa,  in  an  action  for  damages  sustained  by  the 
wrongful  causing  of  backwater  whereby  the  plaintiff's  mill- 
power  was  injured,  it  was  held,  that  the  plaintiff  might  recover 
for  the  injury  caused  by  the  overflow  of  his  premises  without 
any  proof  of  damage  to  the  water-power  of  his  mill ;  that  the 
recovery  would  be  limited  to  the  time  of  the  commencement 
of  his  suit;  and  that  a  fresh  action  would  lie  for  any  continua- 
tion of  the  trespass  subsequent  thereto." 

§746.  Mining— Rule  of  Damages.— The  rule  of  dam- 
ages where  ore  is  removed  and  appropriated,  is  not  only  such 
injury  as  may  be  sustained  to  the  lands,  but  in  addition  thereto, 
the  value  of  the  ore  at  the  time  and  place  of  removal.  Thus, 
in  Pennsylvania,  the  removal  of  coal  from  the  lands  of  a  party 
entitles  him,  in  the  absence  of  a  willful  wrong  or  of  gross 
neglect,  to  only  the  actual  damages  to  the  land  and  the  actual 
value  of  the  ore  in  the  ground,  and  not  its  value  after  it  has 
been  dug.'  But  in  California,  under  such  circumstances,  the 
damages  for  wrongfully  removing  gold-bearing  earth  from  a 
claim  is  the  value  of  the  gold,  less  the  expense  of  digging  and 
separating  the  gold  therefrom.*     And  in  the  Irish  court  of 

3  Simmous  v.  Brown,  5  R.  I.,  299;  Brown  v.  Brown,  30  N.  Y.,  519;  Elliott 
V.  The  Fitchburg  R.  Co.,  10  Cush.  (Mass.),  191;  Burden  v.  The  Mayor  of 
Mobile,  21  Ala.,  309;  McElroy  v.  Goble,  6  Ohio  St.,  187. 

*  Close  V.  Samm,  27  la.,  503. 

s  Forsyth  v.  WeUs,  41  Pa.  St.,  291.  But  in  England  it  has  been  held,  that 
the  damages  for  taking  coal  from  a  mine  was  the  value  of  the  coal  as  soon  as 
it  is  severed  from  the  freehold.  Morgan  v.  Powell,  2  G.  &  D.,  721;  3  Q.  B. 
278;  6  Jur.,  1100;  11  L.  J.  Q.  B.,  263;  S.  P.,  Martin  v.  Poi-ter,  5  M.  &  W.,  252; 
H.  &  H.,  70. 

*  Maye  v.  Tappen,  23  Cal.,  306.  No  claim  for  damages  to  the  land  seems 
to  have  been  made.  Goller  v.  Fett,  30  Cal.,  481.  See,  also,  Kier  v. 
Peterson,  41  Pa.  St.,  357;  Stockbridge  Iron  Co.  v.  Cone  Iron  works, 
102  Mass.,   80.    But  in  Illinois,  in  aai  action  for  digging  brick  clay,  the 


602  THE  LAW  OF  DAMAGES. 

Nuisance— Rule  of  Damages. 

Queen's  Bench,  in  an  action  by  a  landlord  against  his  tenant 
for  digging  clay  on  the  demised  premises,  where  the  plaintiff 
claimed  damages  for  the  injury  to  the  reversion,  and  also  for 
the  value  of  the  clay,  and  the  jury  found  the  removal  of  the 
clay  had  diminished  the  value  of  the  land  £156,  and  that  the 
value  of  the  clay  dug  was  £150,  the  court  refused  to  allow  a 
verdict  for  the  value  of  the  clay  in  addition  to  the  amount  of 
the  dimished  value  of  the  land/ 

§  747.  Nuisance. — Blackstone  defines  a  private  nuisance 
to  be  "anything  done  to  the  hurt  or  annoyance  of  another."* 
Mr.  Hilliard,  in  his  valuable  work  on  Torts,  remarks:  "The 
injury  of  nuisance  is  of  a  more  comprehensive  or  miscella- 
neous character  than  any  other.  *  *  *  It  relates  to  rights 
not  in  their  nature  specific,  definite,  or  tangible,  but  incident 
to,  or  growing  out  of  corporeal  property,  and  in  part  on 
account  of  this  incorporeal  character  varying  with  the  diverse 
circumstances  of  individual  cases."*  The  most  effectual  rem- 
edy for  a  nuisance  is  in  equity,  or  by  proceedings  under  stat- 
utes to  abate  the  same." 

§  748 .  Rule  of  Damages. — In  an  action  for  a  nuisance, 
the  measure  of  damages  embraces  all  injuries  done  the  plain- 
tiff by  reason  of  the  nuisance,  to  the  commencement  of  the  suit, 

measure  of  damages  was  held  to  be  the  value  of  the  clay  to  the  defendant 
and  not  the  excess  of  the  value  over  the  cost  of  digging,  and  the  defendant 
was  not  allowed  to  recover  for  benefits  to  the  plaintiff  conferred  by  the  dig- 
ging. The  Chicago  South  Branch  Dock  Co.,  v.  Dunlap,  32  111.,  207.  See, 
also,  Martin  v.  Porter,  5  Mees.  &  W.,  351;  Martin  v.  Powell,  3  Q.  B.,  278. 
Mr.  Sedgwick  remarks:  "That  in  trespass,  if  the  defendant  has  in  good 
faith  increased  the  value  of  the  property,  the  plaintiff  shall  not  have  the 
benefit  of  his  labor."    Sedg.  on  Dam.,  538. 

^  Leinpemone  v.  Moore,  15  Irish  L.  R.,  14.  See,  also,  Hilton  v.  Woods,  L. 
R.,  4  Eq.,  432 

8  3  Black.  Com.,  217. 

9  Hill,  on  Torts.  548. 

»  Story's  Eq.,  238,  §  §  925,  927;  Knox  v.  New  York,  55  Barb.,  404. 


INJURIES  TO  PROPERTY— TRESPASS.        603 

Rule  of  Damages. 

"but  not  prospective  or  permanent  injur3^'  And  where  courts 
of  equity  have  cognizance  of  actions  brought  to  restrain  the 
commission  of  nuisances,  or  to  compel  the  discontinuance  of 
them,  they  will  entertain  jurisdiction  for  the  purpose  of  dis- 
posing of  the  question  of  damages,  and  award  damages  for 
the  injury  sustained  by  reason  of  the  nuisance.'' 

The  general  rules  of  damages,  applicable  in  cases  of  trespass 
for  injuries  to  real  estate,  are  also  applicable  in  actions  for 
injuries  thereto  arising  from  a  nuisance.'  In  a  recent  action 
for  damages  caused  by  the  operation  of  certain  steam  ma- 
chinery on  premises  adjoining  those  of  the  plaintiff,  which 
premises  were  used  as  a  marble  factory,  with  machinery  for 
such  manufacture  propelled  by  steam ;  and  the  damages  claimed 
were  for  injury  to  the  plaintiff's  premises,  from  the  jarring 
effect  and  noise  of  such  machinery,  thereby  preventing  the 
plaintiff  from  letting  the  premises  with  facility,  and  the  con- 
sequent loss  of  rents,  the  court  say:  "This  presents  the 
naked  question  whether  the  lawful  character  of  the  results  of 
an  occupation,  trade,  or  mechanical  art,  or  the  care  with  which 
it  is  carried  on,  can  prevent  any  right  of  action  by  those  whose 
enjoyment  of  life  or  property  is  destroyed  by  the  mode  or 
means  of  conducting  such  occupation,  trade,  or  mechanical 
art.  The  right  of  jarring  a  neighbor's  house  by  the  motion 
of  a  steam  engine  upon  one's  own  premises,  cannot  depend  at 
all  upon  the  utility  or  lawfulness  of  the  purpose  for  which 
such  motion  is  employed,  or  its  final  results.     The  interme- 

1  Blunt  V.  McConnick,  3  Den.  (N.  Y.),  283;  Penoyer  v.  Saginaw,  8  Mich., 
534;  "Wagoner  v.  Jermaine,  3  Denio,  306;  Pillsbury  v.  Moore,  44  Me.,  154; 
Thayer  v.  Brooks,  17  Ohio,  489;  3  Black.  Com.,  220;  lU.  Cent.  R.  Co.  v. 
GrahiU,  50  111.,  241. 

2  Davis  V.  Lambertson,  56  Barb.,  480.  An  action  will  lie  against  a  party 
who  erects  a  nuisance,  and  if  a  recovery  is  had  for  the  erection  an  action 
will  lie  also  for  its  continuance,  although  the  party  has  leased  it  to  another. 
If  he  receives  rent,  he  should  respond  in  damages  for  the  injury  which  it 
occasions.     Grady  v.  Wolsner,  46  Ala.,  381. 

3  See,  ante,  §  556,  et  seq. ;  111.  Cent.  R.  Co.  v.  Grabill,  50  111.,  241;  Houghton 
V.  Bankhard,  3  L.  T.  R.  (N.  S.),  266. 


604  THE  LAW  OF  DAMAGES. 


Rule  of  Damages. 


diate  injury  before  sucli  results  are  obtained,  wrought  upon 
another's  property,  or  enjoyment  of  life,  make  such  employ- 
ment unlawful."  And  the  injury  to  the  building,  deprivation 
of  rent,  and  loss  of  tenants  to  the  time  of  the  commencement 
of  the  action,  were  held  to  be  proper  elements  of  damages." 

§  749.  So,  an  action  may  be  maintained  by  the  owner  of 
land  bordering  along  a  public  street,  for  a  nuisance  created 
by  a  railway  company  in  building  their  railway  along  such 
street  without  right.  And  the  measure  of  damages  would  be 
all  the  loss  and  inconvenience  which  the  owner  has  sustained 
thereby,  in  view  of  the  use  to  which  such  land  has  been  put 
durin<>-  the  continuance  of  the  nuisance.'  So,  where  an  action 
was  brought  for  a  nuisance,  occasioned  by  the  discharge  of 
impure  water  upon  the  plaintiff's  land  from  the  defendant's 
brewery,  through  a  drain  which  the  defendant  dug  from  his 
brewery  to  a  pit  on  the  plaintiffs  land,  which  water  thus  dis- 
charged into  the  pit  had  become  so  offensive  that  the  board 
of  health  of  Boston  required  the  pit  to  be  filled  up  by  the 
plaintiff,  it  was  held,  that  the  expenses  of  filling  up  the  pit 
were  proper  elements  of  damages." 

So,  it  is  held,  that  an  action  for  a  nuisance  will  be  sustained, 
if  the  alleged  injury  be  a  plain  interference  with  the  ordinary 
comforts  and  enjoyments  of  life,  no  matter  how  slight  the 
damage,  provided  the  inconvenience  be  not  fanciful.  Thus, 
where  the  occupants  of  the  plaintiff^s  house  were  annoyed 
with  chaff  and  smut,  blown  from  the  defendant's  flouring  mill, 
it  was  held,  that  the  plaintiff"  could  maintain  an  action  and 
recover  his  actual  damages  therefor.' 

And  the  erection  of  an  embankment  upon  one's  own  land, 
whereby  the  surface  water  on  the  adjoining  lands  of  another 

4  McKeon  v.  Lee,  4  Rob.  (N.  Y.),  449. 

s  Hatfield  v.  The  Cent.  R.  Co..  33  N.  J.,  251. 

6  Shaw  V.  Cummiskey,  7  Pick.,  76.  See,  also,  Carhart  v.  The  Auburn  Gas- 
light Co.,  22  Barb.,  297. 

7  Cooper  V.  Randall,  53  111.,  24.  » 


INJUKIES  TO  PROPERTY— TEESPASS.        605 


statutory  Provisions— Waste— Damages. 


is  diverted  from  the  natural  flow,  is  a  nuisance  for  wliich  an 
action  will  lie  without  showing  actual  damages/  And  it 
seems  that  it  is  no  defense  that  the  plaintiff,  who  was  a  lessee 
of  the  premises,  rented  them  after  the  business  occasioning  the 
nuisance  had  been  established,  and  with  knowledge  of  its 
existence  and  for  a  smaller  rent  on  that  account.  Isor  is  it  a 
defense  that  the  business  occasioning  the  nuisance  is  necessary 
to  be  carried  on  and  is  useful  to  the  public/ 

It  should  be  observed,  that  an  action  for  damages  for  a 
nuisance  cannot  be  maintained  for  an  injnrj  to  the  public 
only,  but  the  plaintiff  must  show  that  he  has  sustained  dam- 
ages peculiar  to  himself,  and  to  that  extent  it  is  a  private  nui- 
sance as  to  him,  and  for  which  he  mav  recover  such  damages 
as  he  may  have  sustained  to  the  time  of  bringing  the  action/ 

But  he  must  have  sustained  an  injury,  differing  in  kind 
from  that  sustained  by  the  public  in  general,  or  he  cannot 
maintain  an  action  therefor/ 

§  750.  Statutory  Provisions.— The  statutes  of  various 
states  define,  what  a  nuisance  is,  and  provide  a  remedy  there- 
for, by  an  action  for  the  damages  and  for  the  abatement 
thereof/ 

§  751.  Waste— Damages.— The  subject  of  waste  is,  in 
this  country,  usually  a  matter  of  statutory  regulation.  Stat- 
utes frequently  provide  for  the  recovery  of  double  or  treble 
damages,  by  those  entitled  to  recover  against  guardians, 
tenants  for  years,  joint  tenants  or  tenants  in  common.  The 
measure  of  actual  damages  in  such  cases  is  the  amount  of 
damages  sustained  by  the  parties  interested,  governed  by  the 

s  Tootle  V.  Clifton,  22  Ohio  St.,  247.    But  see  Cincinnati  R.  Co.  v.  Ahr, 
2  Cin.  (Ohio),  504.    Dillon  on  Corp.,  §  797  to  800. 

6  Smith  V.  Phillips,  8  (Pa.),  10. 

7  Grigsby  v.  Clear  Lake  Water  Co.,  40  Cal.,  396. 

8  Venard  v.  Cross,  8  Kan.,  248  (1872).  But  see,  Clark  v.  Peckhara,  9  R.  I., 
455  (1870). 

9  Iowa  Code,  1873,  §  3331,  et  seq.    Rev.  Stat.  Wis.,  1858,  p.  857. 


606  THE  LAW  OF  DAMAGES. 


Waste— Damages. 


general  principles  of  the  law  applicable  to  actions  of  trespass 
quare  clausum  f  regit. 

The  early  English  act  of  Marlbridge,'"  provided  that  the 
tenants  therein  named  should  not  only  forfeit  the  place  wasted, 
but  also  treble  damages  to  him  that  was  entitled  to  the  inher- 
itance. Previous  to  that  time  only  single  damages  were 
recoverable.  In  an  action  in  the  nature  of  waste,  for  cutting 
down  trees  on  an  estate,  the  damages  are  not  confined  to  the 
value  of  the  timber  removed,  but  may  include  the  permanent 
injury  to  the  estate."  And  in  an  action  by  the  remainderman 
for  an  injury  to  the  inheritance,  the  damages  should  not  only 
embrace  the  present  injury  but  the  injury  to  the  inheritance." 

«  52  Hen.  Ill  Ch.,  23,  1267. 

"  Harder  v.  Harder,  26  Barb.,  409. 

"  Van  Duesen  v.  Young,  29  N.  Y.,  9. 


PUBLIC  OFFICERS.  607 


Judicial  Officers -Liability  of— General  Principles. 


OHAPTEE  XXXI. 


DAMAGES  FOR    THE    NONFEASA]S"CE,    MISFEAS- 
ANCE AND  MALFEASANCE  OF  PUBLIC 
OFFICERS. 

Section  760.  Judicial  OflHLcers— Liability— General  Principles. 

761.  Damages. 

762.  Ministerial  Officers- General  Hule. 
764.  Liability  on  Civil  Process. 

766.  Presumptions. 

767.  Neglect  to  Levy  and  False  Eetum. 

768.  Property  "Wrongfully  Taken  on  Process, 

769.  Escape. 

770.  Consequential  Damages. 

771.  Exemplary  Damages. 

772.  Mitigation. 

773.  Board  of  Supervisors. 

774.  Sureties  on  Official  Bonds. 

775.  Attorneys— Liability  of. 

§  760.  Judicial  Officers— Liability  of— General  Prin- 
ciples.— It  is  well  settled  in  the  law  that  no  judicial  officer  is 
responsible  in  damages  for  his  errors  and  mistakes,  at  least 
where  he  has  jurisdiction  to  act,  and  where  he  acts  honestly 
and  in  good  faith.  No  mere  misapprehension,  or  errors  of  an 
honest  judgment,  will  render  him  responsible  where  there  is 
jurisdiction  of  the  subject  matter.  This  doctrine  is  thus  laid 
down  by  Mr.  Chitty :  "  An  action  cannot  be  maintained  against 
a  civil  or  ecclesiastical  judge  or  justice  of  the  peace,  acting 


608  THE  LAW  OF  DAMAGES. 

Damages. 

judicially  in  a  matter  within  the  scope  of  his  jurisdiction, 
although  he  may  decide  erroneously  in  the  particular  case. 
ISTor  can  an  action  be  maintained  against  a  juryman,  or  the 
Attorney-General,  or  a  superior  military  or  naval  officer,  for 
any  act  done  in  the  execution  of  his  office  and  within  the  pur- 
view of  his  general  authority."' 

A  judicial  officer  is  not  bound  to  decide  correctly  cither  in 
matter  of  law  or  of  fact,  but  only  according  to  his  convictions; 
and  this  principle,  says  Chief  Justice  Kent,  "has  a  deep  root 
in  the  common  law."* 

It  has  been  held  that  this  does  not  apply  where  he  has 
no  jurisdiction  of  the  subject  matter."  And  if  the  officer 
assumes  to  act  in  such  a  case  he  may  render  himself  liable,  as 
a  trespasser,  for  damages  at  the  suit  of  the  person  injured 
thereby." 

This  doctrine  however  has  been  questioned;  and  it  is  claimed 
perhaps  by  a  preponderance  of  authority,  that  a  judicial  officer 
who  mis-judges  of  his  jurisdiction,  where  at  least  it  depends 
upon  matters  of  fact,  should  be  exempt  from  any  liability;^ 
and  that  the  protection  affiDrded  a  judicial  officer  extends  to 
all  cases  except  where  he  acts  fraudulently,  corruptly  and 
maliciously.* 

But  the  law  relating  to  liability  in  such  cases,  is  not  properly 
within  the  purposes  of  the  author  to  record  in  this  volume. 

§  761.  Damages. — The  general  rule  we  have  furnished 
would,  of  course,  be  a  sufficient  guide  to  damages  in  such  cases. 
The  principle  of  compensation  being  regarded,  in  cases  where 

3 1  Chit,  on  PI.,  78. 

4  Lansing  v.  Yates,  5  Johns.,  367;  9  Johns.,  395. 

s  Pr.  Sharp,  C.  J.,  Pratt  v.  Gardner,  2  Cush.,  68;  2  HiU.  on  Torts,  168. 

6  Blood  V.  Sayer,  17  Vt.,  609;  Cable  v.  Cooper,  15  John.,  157;  Houlten 
V.  Smith.  14  Aid.  &  EU.  (N.  S.),  841;  Pease  v.  Clayton,  1  Best.  &  S.,  658; 
2  Hill,  on  Torts.  174  and  175. 

^  See  2  Stark  Ev.,  809;  2  Hill,  on  Torts,  179,  and  cases  cited. 

^Bevard  v.  Hoflfman,  18  Md.,  479;  BuUett  v.  Clemant,  16  B.  Mon.,  193; 
Gregory  V.  Brown,  4  Bibb.,  28;  Morgan  v.  Dudley,  18  B.  Mon.,  693;  Mor- 
gan V.  Hughes,  2  T.  R.,  225;  Burly  v.  Bethune,  5  Taunt.,  580. 


PUBLIC  OFFICEES.  609 

Ministerial  Officers— General  Rule. 

the  circumstances  do  not  authorize  exemplary  damages, 
whether  these  relate  to  injures  to  the  person  or  the  property. 
If  the  injury  resulting  from  the  fraudulent  act  of  the  judicial 
officer  was  imprisonment,  then  the  general  rules  of  damages 
applicable  to  false  imprisonment  would  of  course  apply.  But 
if  it  resulted  in  an  injury  to  the  property  of  the  plaintiff,  the 
ordinar}'-  rule  of  damages  applicable  to  trespass  would  govern."" 

§  762.  Jlinisterial  Officers— General  Rule.— Ministe- 
rial officers  are  those  whose  duty  it  is  to  execute  the  mandates 
of  their  superiors,  lawfully  issued.^'  They  consist  chiefly  of 
sheriffs,  constables,  marshals,  and  other  officers  of  the  law 
charged  with  the  execution  of  legal  process. 

The  general  rule  in  relation  to  their  liability  in  the  execu- 
tion of  process  is,  that  where  the  court  has  jurisdiction  of  the 
subject  matter,  the  officer  is  not  bound  to  look  into  the  pro- 
ceedings under  which  it  was  issued. 

If  the  process  is  issued  by  a  court  having  jurisdiction  of 
the  subject  .matter,  and  is  regular  on  its  face,  it  is  generally  a 
protection  to  the  officer  in  obeying  the  requirements  of  the 
process."  If  the  subject  matter  is  within  the  jurisdiction  of 
the  court  or  officer  issuing  the  process,  and  the  want  of  juris- 
diction relates  only  to  the  person  or  place,  the  executive  officer 
cannot  be  required  to  determine  the  question  of  jurisdiction 
in  such  a  case,  and  would  be  protected  in  the  execution  of  pro- 
cess regular  on  its  face,  unless  it  appeared  that  there  was  no 
jurisdiction."  But  want  of  jurisdiction  of  the  subject  matter 
deprives  the  officer  of  protection  from  the  process." 

=°See  ante,  §  679,  et  seq.,ante,  §  730,  etseq. 

"  Bouv.  Law  D.,  Tit.  Officers;  Howe  v.  Mason,  14  la.,  510. 

=»  Warner  v.  Shed,  10  Johns.,  138;  Dynes  v.  Hoover,  20  How.  (U.  S.),  65; 
Woods  V.  Davis,  34  N'.  H.,  323;  Gray  v.  Kimbal,  42  Me.,  299;  Orfcman  v. 
Greenman,  4  Mich.,  291. 

=3  Smith  V.  Shaw.  12  Johns..  257;  Ghampaiofn  Bank  v.  Smith,  7  Ohio  State, 
42;  Barker  v.  Green,  2  Bing.,  317.  See,  also.  Squibb  v.  Hole,  2  Mod.,  29; 
Higginson  v.  Martin,  2  Mod..  195;  2  Hill,  on  Torts,  199  (3d  ed.). 

^Pierce  v.  Atwood,  13  Mass.,  324;  Stephens  v.  Wilkins,  6  Barr.,  260; 
HuU  V.  BlaisdeU,  1  Scam.  (lU.),  332. 
39 


610  THE  LAW  OF  DAMAGES. 

Liability  on  Civil  Process. 

§  763.  We  have  sufficiently  considered  the  liability  of  an 
officer  in  such  cases  when  the  charge  is  trespass  to  the  person, 
as  assault  and  battery  or  false  imprisonment,  in  considering 
those  topics,"  and  we  shall  hereafter  indicate  the  rule  of  dam- 
ages, in  most  other  cases  of  suits  against  an  officer  for  execu- 
ting a  void  process,  in  discussing  the  law  of  damages  in  cases 
of  trespass,  conversion,  and  replevin.*" 

But  there  are  some  questions  relating  to  damages,  in  cases 
of  nonfeasance,  misfeasance,  and  particularly  the  malfeasance 
of  ministerial  officers,  which  we  will  proceed  briefly  to  con- 
sider. 

§  764.  Liability  on  Civil  Process.— Questions  relating 
to  the  liability  of  sheriffs  and  other  ministerial  officers  most 
frequently  arise  on  civil  process,  as  for  the  escape  of  parties 
arrested  on  mesne  or  final  process;  neglect  to  seize  or  to  pre- 
serve property  taken  on  process;  for  failure  to  return  the  same, 
or  for  a  false  return;  for  an  excessive  levy,  or  an  unauthorized 
seizure  of  property  on  the  process  of  execution  or  attachment, 
as  when  property  exempt  from  levy  is  taken,  or  the  property 
of  a  third  party  is  levied  upon.  It  is  well  settled  in  these 
cases,  that  the  officer  is  liable  to  the  party  injured,  to  the  full 
extent  of  the  loss  suffered  by  his  neglect  or  misconduct." 

§  765.  The  general  rule  for  the  measure  of  damages  in 
cases  of  misconduct,  or  neglect  of  duty  on  the  part  of  a  sheriff, 
in  relation  to  an  execution  is  the  amount  of  damages  sustained 
thereby.     In   the   absence   of  bad   faith   he   is  not  liable  to 

=s  See,  ante,  §  599,  et  seq.,  and  §  679,  et  seq. 

'^  See,  post,  Chaps.  32,  33,  34. 

=7  Clark  V.  Miller,  47  Barb.,  N.  T.,  38;  Hayes  v.  Porter,  22  Me.,  371; 
Beckford  v.  Hood,  7  T.  R.,  620;  Farmers'  Turnpike  Co.  v.  Coventry,  10  Johns. 
389;  Pugh  V.  McRae,  2  Ala.,  393;  Clark  v.  Smith,  10  Conn.,  1;  Hamilton  v. 
Marsh,  2  Tyler  (Vt.),  403;  Arnold  v.  Commonwealth,  8  B.  Mon.  (Ky.),  109; 
Marshall  v.  Simpson,  13  La.  An.,  437;  Hodson  v.  Wilkins,  7  Me.,  113;  Ack- 
ley  V.  Chester,  5  Day  (Conn.),  221;  Danforth  v.  Pratt,  9  Cush.  (Mass.),  318; 
Hamner  v.  Griffith,  1  Grant  (Pa.),  Cas.,  193;  Bamet  v.  Roed,  51  Pa.  St.,  190; 
Crow  V.  State,  23  Ark.,  684. 


PUBLIC  OFFICEES.  611 


Presumptions— Neglect  to  Levy  and  False  Return. 


exemplary  damages.  And  in  case  of  the  neglect  of  an  officer, 
by  which  the  creditor  fails  to  secure  the  proceeds  of  the  prop- 
erty on  execution,  the  creditor  may  usually  recover  the  value 
of  the  property,  not  exceeding,  however,  the  amount  due  on  the 
execution.""  And  in  an  action  against  an  officer  for  a  failure 
to  return  an  execution,  the  measure  of  damages  \%  ])rima  facie 
the  amount  required  to  satisfy  the  execution." 

§  766 .  Presumptions  .—It  may  be  proper  here  to  remark 
that  the  presumptions  are  in  favor  of  an  officer,  and  that  he 
has  done  his  duty.''  And  where  the  attached  goods  are  lost, 
in  an  action  against  the  officer  therefor,  if  he  shows  the  loss 
and  the  attendant  circumstances  from  which  neglio-ence  cannot 
be  inferred,  the  burden  of  proof  is  then  on  the  plaintiff  to  show 
negligence;  and  in  case  of  a  loss  of  the  property  by  theft,  this 
has  been  held  to  be  not  even  presumptive  evidence  of  neo-li- 
gence.*"  And  where  there  is  a  discretionary  authority  vested  in  a 
public  officer,  if  he  acts  within  its  scope,  he  is  not  answerable 
in  damages  for  the  consequences  of  his  acts,  unless  done  mali- 
ciously and  with  intent  to  injure.'" 

§  767 .  Neglect  to  Levy  and  False  Return.— In  an  ac- 
tion against  a  sheriff  for  not  levying,  and  for  a  false  return  of 
an  execution,  it  was  held,  that  the  proper  estimate  of  damages 
was  what  the  goods  would  have  realized,  if  sold  by  the  sheriff 
at  the  best  price  which  he  could   have  obtained,  not  exceed- 


=6  Phelps  V.  Owens,  11  Gal.,  22;  Bogel  v.  Bell,  15  La.  An.,  163;  Marshal  v. 
Simpson,  13  La.  An.,  437;  Blodgett  v.  Brattleboro,  30  Vt.,  579;  Brig'g-s  v. 
Gleason,  29  Vt.,  79;  Plummer  v.  Harbut,  5  la.,  308;  Whittaker  v.  Sumner, 
9  Pick.,  308;  French  v.  Snyder,  30  111.,  339;  Commonwealth  v.  Lightfoot,  7 
B.  Mon.,  298;  Hogan  v.  Kellum,  13  Tex.,  396;  Nightengale  v.  Scannell,  18 
Cal.,  315.  See,  also,  Clark  v.  Miller,  47  Barb.  (N.  Y.),  38;  Goodrich  v 
Foster,  20  N.  H.,  177. 

=7  Ledyard  v.  Jones,  3  Seld.,  N.  Y.,  550;  4  Sandf.,  67. 

=8  State  V.  Freeman,  8  la.,  428. 

=9Mms  V.  Gilbreth,  47  Me.,  320. 

3°  Burton  v.  Fulton,  49  Pa.  St.,  151. 


612  THE  LAW  OF  DAMAGES. 

Property  Wrongfully  Taken. 

ing,  of  course,  the  amount  of  the  debt/''  And  where,  through 
the  neglect  of  the  officer  to  levy  an  attachment  or  execution, 
satisfaction  of  the  judgment  has  been  defeated,  the  measure 
of  damages  is  tlie  amount  of  the  judgment  or  execution,  or  so 
much  thereof  as  the  value  of  the  property  which  the  officer 
neglected  to  attach  would  have  been  sufficient  to  satisfy .°'    ' 

So,  where  through  the  negligence  of  the  officer  a  slave,  ar- 
rested by  him  for  a  criminal  offense,  escaped  and  was  drowned, 
and  the  plaintiff  had  only  a  life  estate  in  the  slave,  damages  to 
the  value  of  such  interest  were  held  proper.'* 

If  the  officer  wrongfully  converts  property  taken  by  him, 
the  measure  of  damages  is  the  value  of  the  property  converted.^^ 
But  where  the  suit  is  by  the  creditor  this  amount,  however, 
should  not  exceed  the  amount  of  his  execution.  And  where 
the  officer,  w^ithout  the  directions  of  the  plaintiff  in  execution, 
gold  property  on  credit,  and  some  of  the  purchasers  proved  in- 
solvent, he  was  held  liable  to  account  for  the  full  amount  of 
the  sale.'" 

So,  in  Indiana  it  has  been  held  that  where,  on  a  sale  of  land 
on  execution,  the  sheriff  was  bound  to  tender  a  deed  to  the  pur- 
chaser and  he  failed  so  to  do,  and  on  failure  of  the  purchaser 
to  pay  the  amount  bid  he  resold  the  same  for  a  less  price  than 
on  the  first  sale,  he  was  held  liable  for  the  difference." 

§  768.  Property  Wrongfully  Taken.  If  the  officer 
seizes  property  wrongfully,  as  where  it  is  exempt  from  exe- 
cution or  the  property  of  a  third  person,  the  measure  of  dam- 

3=Mullett  V.  Challis,  2  Eng.  L.  and  Eq.,  260;  see  farther  in  case  of  false 
return,  Hinman  v.  Borden,  10  Wend.,  367. 

33  Bowman  v.  CorneU,  39  Barb.,  (N.  Y.)  69;  Perkins  v.  Pitman,  24  N  H., 
261 ;  Smith  v.  Tooke,  20  Tex.,  750. 

34  Tudor  V.  Lewis,  3  Met.  (Ky.),  378. 

35Brobst  V.  Skillen,  16  Ohio  St.,  382.  See,  also,  Woodbome  v.  Scarbor- 
ough, 20  Ohio  St.,  57. 

36  Chase  v.  Monroe,  10  Post.  (N.  H.),  427. 

37  The  State  v.  Lynes,  4  Ind.,  351. 


PUBLIC  OFFICEES.  613 


Escape. 


ages  would  be  tlie  same  as  in  an  action  for  its  conversion, 
whicli  we  shall  notice  hereafter.'* 

If  the  action  is  for  the  specific  property,  reference  may  be 
had  to  the  law  of  damages,  in  such  cases,  which  we  shall  con- 
sider in  treating  of  replevin.''  Where  the  assignee  of  a 
mortgage  of  personal  property  brought  an  action  against  the 
officer  for  taking  the  mortgaged  property  on  execution  against 
the  assignor,  and  holding  it  until  the  assignee  paid  the  amount 
of  the  execution  and  officer's  fees,  the  damages  were  held  to 
be  tiie  amount  paid  and  interest,  besides  a  reasonable  amount 
as  compensation  for  the  detention."  There  would  seem  to  be 
no  reason  for  a  distinction,  in  such  cases,  between  a  private 
person  and  a  ministerial  officer. 

§  769.  Escape.— As  imprisonment  for  debt  has  generally, 
if  not  universally,  been  abolished  in  this  country,  a  considera- 
tion of  the  subject  of  damages  in  case  of  escape  is  practically 
of  little  consequence.  We  will  therefore  only  give  the  excel- 
lent summary  of  the  law  on  that  subject,  furnished  by  the 
Supreme  Court  of  Ohio,  in  the  able,  clear  and  succinct  opinion 
given  by  that  court  in  Hoatman  v.  Shriner: 

"1.  On  proving  the  judgment,  arrest  and  escape,  the  plain- 
W^  \^  jpTima  facie  entitled  to  recover  the  whole  amount  of  his 
debt. 

2.  To  reduce  the  amount  of  the  recovery  below  the  amount 
of  debt,  due  from  the  escaping  prisoner,  the  o^ius  prubandi 
rests  upon  the  defendant. 

38  See.  post,  §  847,  et  seq.  When  an  officer,  acting  in  good  faith  and  with 
proper  care  and  deHgence,  takes  the  property  of  a  stranger,  in  an  action 
against  him  for  the  taking  and  detention,  the  measure  of  damages  is  the  in- 
terest on  the  value  of  the  goods  so  taken,  from  the  time  of  the  Taking,  until 
restitution;  and  reasonable  compensation  for  the  depreciation  in  value,  if  any, 
besides  the  expenses  in  recovering  them,  and  also  any  damage  to  the  plain- 
tiff's business  in  consequence  thereof.  Welsh  v.  Lewis  7  Wis.,  465.  See 
also  Morris  v.  Baker,  Id.,  389;  Gordon  v.  Jenny,  16  Mass.,  465. 

39  See,  post,  §  885,  et  seq.  For  the  wrongful  seizure  of  goods  by  an  officer  the 
usual  measure  of  damages  is  their  value.    Pelburgh  v.  Gorham,  23  Cal.,  349. 

""Carpenter  V.  Cuminings,  40  N.  fl.,  158;  Felton  v.  Fuller,  35 N.  H.'^  226.' 


614  THE  LAW  OF  DAMAGES. 

Consequential  Damages— Exemplary  Damages. 


3.  For  this  purpose,  the  defendant  may  not  show  that  the 
amount  of  the  debt  is  still  capable  of  being  collected  from  the 
escaped  prisoner,  but  may  show  his  partial  or  total  insolvency 
or  pecuniary  worthlessness  at  the  time  of  the  escape. 

4.  That  on  proving  judgment,  arrest  and  escape.,  the  plaintiff, 
in  all  cases  is  entitled  to  recover  at  least  nominal  damages. 

5.  "When  the  jury  find  the  escape  to  have  been  not  only 
voluntarily  on  the  part  of  the  officer,  but  that  in  permitting  the 
same  he  was  actuated  by  fraud,  malice,  or  corruption,  they  are 
not  restricted  to  the  amount  of  injury  actually  sustained,  and 
may  include  reasonable  exemplary  damages,  but  with  this  ex- 
ception: where  evidence  in  mitigation  is  given,  the  actual 
injury  sustained  is  the  prop'er  measure  of  recovery."  " 

§770.  Consequential  Damages  .—The  officer  is  gener- 
ally liable  to  more  remote  or  consequential  damages  where  he 
acts  fraudulently."  And  when  one  had  purchased  certain 
premises  on  the  foreclosure  of  a  mortgage,  executed  to  him 
by  the  occupants,  and  a  proper  writ  was  placed  in  the  hands 
of  the  sheriff  to  put  the  purchaser  in  possession,  but  who, 
against  the  protestations  of  the  plaintiff,  neglected  to  execute 
the  same  for  two  days,  and  in  the  meantime  the  occupants 
willfully  and  maliciously  injured  the  premises,  he  was  held 
liable  for  the  damages  thus  sustained.  The  court  say,  that  as 
the  right  of  the  plaintiff  could  only  be  obtained  through  the 
official  action  of  the  officer,  any  damages  resulting  from  the 
negligence  of  the  officer  in  placing  the  plaintiff  in  possession 
of  the  premises,  were  justly  and  legally  recoverable,  and  that 
he  should  be  held  to  the  full  extent  of  the  injury." 

§771.  Exemplary  Damages.— It  is  apparent  that  the 
general   doctrine   of  exemplary  damages  applies  as  well  to 

4'  15  Ohio  St.,  43.  The  provisions  of  the  constitutions  of  most  of  the  states 
are  to  the  effect  that  no  person  shall  be  imprisoned  for  debt  either  on  mesne 
or  final  process . 

42  Bank  of  Rome  v.  Mott,  17  Wend.,  554;  Yates  v.  Joyce,  11  Johns,  136. 

«  Chapman  v.  Thornbm-gh,  17  Cal.,  87. 


PUBLIC  OFFICERS.  615 

MitigatioQ. 

ministerial  officers  as  to  other  persons,  and  if  they  have  been 
guilty  of  actual  malice,  fraud  or  oppression,  the  measure  of 
damages  is  not  necessarily  confined  to  actual  compensation; 
and  a  ministerial  officer  is  no  less  liable  under  such  circum- 
stances than  a  private  person,"  In  an  action  of  trespass,  de 
lonis  asjportatis,  for  an  illegal  levy,  the  Supreme  Court  of 
Connecticut  say:  "The  jury  may  give  vindictive  damages, 
if  they  find  that  the  said  trespass  was  committed  willfully, 
and  ^n  a  wanton,  and  aggravated  manner,  and  with  a  design 
to  vex  and  injure  the  plaintiff." 

§  772.  Mitigation. — The  same  general  principles  here 
ajjply  in  mHigation,  that  we  have  noticed  as  applicable  gener- 
ally in  cases  of  trover  or  replevin."  Thus  in  an  action  against 
the  sheriff  for  seizing  and  selling  goods  of  the  plaintiff,  on  an 
execution  against  another  party,  the  sheriff  may  show  in  mit- 
igation of  damages  that  the  goods  were  bought  in  by  the 
plaintiff  at  an  under  price."  But  the  sheriff  who  has  wrong- 
fully levied  upon  goods  of  a  defendant  in  the  execution,  cannot 
generally  show  in  mitigation  of  damages,  that  he  has  applied 
the  proceeds  of  the  sale  to  the  payment  of  a  debt  of  the  plain- 
tiff.^' And  in  trespass  against  an  officer,  for  taking  on  exe- 
cution a  debtor's  only  cow,  which  was  exempt,  the  plaintiff 
was  held  entitled  to  recover  the  value  of  the  cow,  although 
the  proceeds  of  the  sale  of  the  cow  had  been  applied  in  satis- 
faction  of    the   execution."'     Nor  can   the  obligors  upon  a 

44  Nightengale  V.  Scannell,  18  Cal.,  315;  Sowell  v.  Champion,  2  Nev.  & 
PeriT,  627;  s.  c,  6  Adol.  &  E.,  407;  Kerby  v.  Denby,  1  M.  &  W.,  336; 
Duke  of  Brunswick  v.  Slowman,  8  M.  Gr.  &  Scott,  317. 

45  Huntley  v.  Bacon,  15  Conn.,  271.  See,  also,  ante,  §  26,  et  seq.,  and  §  69, 
et  seq. 

46  See,  post.  Chaps.  33  and  34. 

47  Forsyth  V.  Palmer,  18  Pa.  St.,  96;  Baker  v.  Freeman,  9  Wend.,  36; 
Clark  V.  Hallock.  16  Id.,  607;  Alexander  v.  Helber,  35  Mo.,  334. 

48McMichaelv.  Meason,  13  Pa.  St.,  214;  Ohio  v.  Jones,  21  Wend.,  594;  Hop- 
ple V.  Higbee,  3  Zabr.  (N.  J.),  342,  where  the  rule  appears  to  be  otherwise 
in  Kew  Jersey.    See,  also,  §  97,  et  seg.,  and  §  768,  et  seq. 

49  HiU  V.  Loomis,  6  N.  H.,  263. 


616  THE  LAW  OF  DAMAGES. 

Board  of  Supervisors— Sureties  on  Official  Bonds. 

delivery  bond  sliow,  in  mitigation  of  damages  on  the  bond,  that 
the  i^roperty  belonged  to  them." 

But  in  Alabama,  in  an  action  against  a  sherifl'  for  the  wrong- 
ful levy  on  the  property  of  the  plaintiff,  on  an  execution 
against  another  person,  the  fact  that  the  goods  were  in  the 
possession  of  the  defendant  at  the  time  of  the  levy,  may  be 
shown  in  mitigation  of  damages."  This  doctrine  could  only 
apply,  on  general  principles,  in  mitigation  of  exemplary  and 
not  actual  damages. 

And  so,  in  an  action  against  an  officer  for  carelessly,  negli- 
gently, willfully  and  corruptly  taking  insutficient  security  on  a 
replevin  bond,  evidence  offered  by  the  defendant  tending  to 
show  that  he  acted  honestly  and  in  good  faith,  and  with  no  cor- 
rupt or  improper  motives  in  approving  the  bond,  was  held 
admissible." 

§  773.  Board  of  Supervisors.— It  has  been  held,  that 
the  members  of  a  board  of  supervisors  were  exempt  from  lia- 
bility for  honest  mistakes  and  errors  of  judgment,  whether 
of  law  or  of  fact;  but  that  they  were  personally  liable  for  neg- 
ligence, carelessness  and  official  misconduct." 

§  774.  Sureties  on  Official  Bonds.— The  statutes  of  vari- 
ous states  provide  for  the  giving  of  official  bonds  by  ministerial 
officers,  in  a  certain  penal  sum,  with  sureties  for  the  faithful 
performance  of  their  official  duties.  And  actions  for  nonfea- 
sance, misfeasance,  or  malfeasance  in  office,  by  such  officers, 
are  usually  brought  on  such  bonds.  The  liability  of  the  sure- 
ties in  such  eases  is  limited  only  by  the  penalty  of  the  bond. 

5'  Waterman  v.  Frank,  21  Mo.,  108. 

5^  Sterrett's  Ex'r  v.  Raster,  1  Ala.,  Sel.  Cases,  404. 

53  Howe  V.  Mason,  12  la.,  202.  See  further  on  this  subject,  Hatfield  v. 
Towsley.  3G.  Greene  (la.),  584;  Yates  v.  Lansing,  5  Johns.,  282;  Vanderhey- 
den  V.  Young,  11  Johns.,  150;  Linford  v.  Fitzray,  13  Aid.  &  Ell.,  240;  Cliick- 
ering  v.  Robinson,  3  Gush.,  543;  Tyler  v.  Alford,  38  Me.,  530;  Pratt  v.  Gard- 
ner, 2  Gush.,  63;  BuUett  v.  Clement,  16  B.  Men.,  193;  2  Hill,  on  Torts,  111, 
et  seq. 

54  Wasson  v.  MitcheU,  18  la.,  153. 


PUBLIC  OFFICEKS.  617 

Attorneys— Liabilities  of. 

But  it  is  evident  that  the  officer's  liability  would  not  be  thus 
limited.  x\.nd  the  sureties  on  an  official  bond  of  an  officer,  are 
held  liable  for  even  his  corrupt  acts;^*  and  for  notes  left  with  hi  in 
for  collection,  where  this  constitutes  a  part  of  his  duty;'°  and 
for  public  money  in  the  hands  of  their  principal  by  virtue  of  his 
office,  at  the  time  of  the  execution  of  the  bond,  even  though 
there  was  a  previous  bond  with  different  sureties,  and  also  for 
money  subsequently  coming  into  his  hands;  yet  they  are  not 
bound  for  past  derelictions  of  duty  or  misconduct."  And  an 
action  against  a  constable  or  sheriff  and  the  sureties  on  his 
bond,  can  be  maintained  where  the  constable  or  sheriff,  by 
virtue  of  an  execution  or  attachment,  seizes  and  sells  property 
which  is  exempt  from  execution,  and  the  plaintiff  is  not  com- 
pelled to  bring  trespass  against  the  officer." 

At  common  law,  on  the  breach  of  an  official  bond,  the  judg- 
ment was  for  the  penalty.  But  by  Statute,  it  is  generally 
provided  that  judgment  in  such  cases,  and  on  statutory  bonds 
generally,  can  only  be  recovered  for  the  actual  damages  sus- 
tained by  the  breach.^* 

§  775.  Attorneys — Liabilities  of.— Attorneys  are  a  class 
of  officers,  and  are  responsible  for  losses  sustained  by  their 
clients  through  any  negligence  in  the  performance  of  duties 
entrusted  to  them  as  such.     They  are  liable  also,  for  injuries 

ss  Gowing:  V.  Gowgill,  12  la.,  495,  which  was  an  action  on  the  official  bond 
of  a  justice  of  the  peace. 

56  Bissinger  v.  Dickinson,  20  la.,  260;  which  was  an  action  on  the  bond  of 
a  justice  of  the  peace. 

s7Townsend  v.  Everett,  4  Ala.,  607.  See,  also,  Farrar  v.  U.  S.,  5  Pet.. 
373;  Myers  v.  Linn,  1  How.  (U.  S.),  104;  The  County  of  Mahaska  v.  IngaUs,  16 
la.,  81,  which  was  an  action  on  the  bond  of  a  treasurer. 

ssStrunk  V.  Ocheltree,  11  la.,  158;  Charles  v.  Haskins,  11  la.,  329;  The 
People  V.  Schuyler,  4  Comst.,  173. 

59  Taylor  V.  The  Governor,  etc.,  17  Geo.,  521;  Sargent  v.  Pomeroy,  33  Me., 
388;  Commonwealth  v.  AUen,  30  Pa.  St.,  49;  Savage  v.  Gunter,  32  Ala.,  467; 
Clifford  V.  KimbaU,  39  Me.,  413;  State  v.  Bishop,  24  Md.,  310.  See,  also, 
ante,  §  548. 


618  THE  LAW  OF  DAMAGES. 

Attorneys— Liabilities  of. 

resulting  to  clients  through  their  gross  ignorance.'".  The  gen- 
eral principles  applicable  to  ministerial  officers  and  agents 
generally,  in  assessing  damages  for  losses  sustained  by  their 
negligence,  equally  apply  to  attorneys  in  similar  cases."'  They 
are  in  such  cases  liable  only  for  the  actual  damages  thereby 
sustained." 

If  a  claim  is  lost,  or  costs  or  expenses  incurred  through  the 
negligence  or  ignorance  of  an  attorney,  it  is  evident  that  he 
should  make  good  the  losses  thereby  sustained."'  It  will  be 
further  obvious  that  where  the  claim  for  damages  is  the  nom- 
inal amount  of  a  debt  lost  by  the  negligence  of  an  attorney, 
proof  that  its  actual  value  was  less  than  its  nominal  amount, 
or  that  the  plaintiff's  claim  for  all,  or  a  portion  of  the  same, 
was  still  good,  or  that  all  or  a  portion  of  the  same  had  been 
recovered,  would  be  proper  to  be  shown  in  mitigation  of  dam- 
ages."* 

6°  2  Hill,  on  Torts,  480  and  484,  and  notes,  4th  ed.;  Morill  v.  Graham,  27 
Tex..  646. 

6i  Hill,  on  T.,  478,  et  seq.,  4th  ed.  See,  also,  on  this  subject,  The  Governor 
V.  Raley,  34  Geo..  175;  Hoby  v.  Built,  3  Barn,  and  Adol.,  350;  Pr.  Ld  Mans- 
field, Pitt  V.  Yalden,  4  Burr.,  2061.    See  ante,  §  762,  et  seq. 

6^2  Hill,  on  Torts,  480,  et  seq. 

*3See  authorities  cited  in  last  two  notes. 

64  See,  for  illustration  of  the  propositions  of  the  text.  Huntington  v.  Rum- 
mill,  3  Day,  390;  Russel  v.  Palmer,  2  WHs.,  325.  See,  also,  Howell  v. 
Young,  5  B.  &  C.  259;  2  Hill,  on  Torts,  488. 


INJUEIES  TO  PERSONAL  PROPERTY.        619 

Trespass— General  Rule  of  Damages— Where  Personal  Property  is  Taken,  etc. 


OHAPTEE  XXXII. 


INJURIES  TO  PERSONAL  PROPERTY. 

Section  780.  Trespass— The  General  Bule  of  Damages. 

781.  "Where  the  Property  is  Taken  or  Destroyed. 

782.  "Where  the  Property  is  Only  Injured. 

783.  Aggravation,  and  Exemplary  Damages. 
785.  Mitigation. 

§  780.    Trespass— The  General  Rule  of  Damages  — 

In  every  case  of  trespass  actual  damages  are  recoverable, 
whether  the  trespass  was  intended  or  not;  and  this  is  the  case 
whether  the  injury  is  to  the  person,  or  to  real  or  personal  prop- 
erty.' And  where  there  is  no  malice  or  aggravating  circum- 
stances attending  the  trespass,  the  damages  are  limited  to 
actual  compensation,  and  the  court  should  so  instruct  the  jury 
as  a  matter  of  law.^ 

§  781-      Where   Personal   Property   is    Taken   or 

Destroyed- — Where  personal  property  is  taken  de  honis 
asportatis^  or  destroyed,  the  measure  of  damages  is  the  value 

'  Haycraft  v.  Creasy,  2  East.,  92;  Chit,  on  PL,  Vol.  1,  p.  147;  Seely  v. 
Alden.  61  Pa.  St.,  302;  Little  v.  Tingle,  26  Ind.,  168;  Ives  v.  Humphreys,  1 
E.  D.  S.  (N.  Y.),  196;  Knight  v.  Egerton,  7  Exch.,  407. 

=  Thomas  v.  Isett,  1  G.  Greene  (la.),  470;  Bussey  v.  Donaldson,  4  Dall., 
206;  Kempton  V.  Stewart,  31  Me.,  566;  Dorsey  v.  Manlove,  14  Cal.,  553; 
Campbell  V.  Woodworth,  26  Barb.,  648;  Derby  v.  Gallup,  5  Minn.,  119; 
Gilson  V.  Wood,  20  111.,  87;  Warren  v.  Cole,  15  Mich.,  265;  Walker  v. 
Boreland,  21  Mo.,  289;  Funk  v.  DiUon,  21  Mo.,  294;  Yarborough  v.  Nettles, 
7  La.  An.,  116;  Hopple  v.  Higbee,  3  Zab.  (N.  Y.),  342;  Hair  v.  Little.  28 
Ala.,  236;  Outcalt  v.  Durling,  1  Dutch.  (N.  J.),  448. 


620  THE  LAW  OF  DAMAGES. 

Where  Property  is  only  Injured. 

of  the  property  with  interest/  and  not  the  profits  which  might 
have  been  made  on  the  property  in  addition  to  its  value/  or 
the  expenses  of  a  litigation  growing  out  of  the  trespass;* 
except  where  exemplary  damages  are  proper,  in  which  case 
these  items  may  properly  be  considered  by  the  jury." 

And  in  actions  da  bonis  asjportatis^  the  plaintiff  may  recover, 
as  elements  of  damages,  the  value  of  time  spent  and  expenses 
incurred  in  searching  for,  or  in  pursuit,  of  the  property/  And 
if  interest  is  not  allowed,  the  value  of  tlie  use  of  the  property 
should  be  allowed;*  in  addition  to  which,  even  exemplary 
damages  may  be  proper  in  certain  cases." 

§  782.    Where  the  Property  is  only  Injured— Where 

the  property  is  not  entirely  lost  to  the  plaintiff  by  destruction 
or  otherwise,  but  is  only  partially  so,  the  usual  measure  of 
damages  is  the  difference  between  the  value  of  the  same  before 
the  injury  and  immediately  after,  and  any  reasonable  expenses 
incurred,  or  value  of  time  spent  in  preserving  or  restoring  it. 

3  Oviatt  V.  Pond,  29  Conn.,  479;  Gilson  v.  Wood,  supra;  Bradley  v. 
Geiselman,  22  111.,  494;  Perkins  v.  Hackleman,  26  Miss.l  41;  Parker  v. 
Wheeler,  8  Wend.,  505.  See  English  rule,  which  is  the  same.  Mayne  on 
Dam.,  220,  221. 

4  Gardner  v.  Field,  1  Gray  (Mass.),  151;  Gray  v.  Stephens,  28  Vt.,  1; 
Butler  V.  Collins,  12  Cal.,  457;  CooUdge  v.  Choate,  11  Met.,  79;  Gushing  v. 
LongfeUow,  26  Me.,  306;  Schindell  v.  Schindell,  12  Md.,  108;  Hughs  v. 
Qumtin,  8  C.  &  P.,  703;  Barrow  v.  Amaud,  8  Q.  B.,  595. 

s  St.  Peters  Church  v.  Beach,  26  Conn..  355;  Warren  v.  Cole,  15  Mich.. 
265. 

6  Dibble  v.  Morris,  26  Conn.,  416;  Oviat  v.  Pond,  29  Id.,  479;  Stopp  v. 
Smith,  71  Pa.  St.,  285;  Garretson  v.  Brown,  2  Dutch.  (N.  J.),  425.  See 
also,  Sanderlin  v.  Shaw,  6  Jones,  (N.  C),  L.,  225.  See  also  Gilbertson  v. 
Richardson,  5  C.  B.,  502. 

7  Bennett  v.  Lockwood,  20  Wend.,  223;  Rice  v.  Nickerson,  9  Allen, 
(Mass.),  478. 

8  Haviland  v.  Parker,  11  Mich.,  103;  Warfield  v.  Walter,  11  G.  &  J.,  80; 
Conard  v.  Pacific  Ins.  Co.,  6  Pet.,  262,  where  it  was  held  that  the  plaintiff, 
in  an  action  de  bonis  asportatis,  had  a  right  to  the  value  of  the  goods  at  the 
time  of  the  seizure  with  interest  from  the  expuration  of  the  usual  credit  on 

lies. 

9  See  ante,  §  71;  post,  §  783.  » 


INJURIES  TO  PERSONAL  PROPERTY.        621 


Aggravation,  and  Exemplary  Damages. 


Thus,  where  the  plaintiff's  horse  was  injured  through  the  neg- 
ligence of  the  defendant's  servant,  the  expenses  of  a  veterinary 
surgeon's  treatment  of  the  horse,  the  value  of  the  services  of 
the  horse  during  his  disability,  and  the  difference  between  the 
value  of  the  horse  before  the  injury  and  immediately  after  the 
treatment,  were  held  to  be  proper  elements  of  damage.' 

§  788.  Aggravation,  and  Exemplary  Damages.— 
In  cases  of  trespass  to  personal  property,  if  malice,  violence, 
fraud,  oppression,  or  outrage  are  connected  with  the  wrongful 
act,  the  jury  are  warranted  in  giving  punitive  damages."  The 
intent  of  the  defendant,  is  a  matter  which  always  affects  the 
amount  of  damages  in  trespasses.  But  though  innocent,  as 
we  have  seen,  that  fact  will  not  relieve  him  from  damages  for 
actual  injury  done."  And  where  there  has  been  an  illegal 
seizure  and  asportation  of  the  plaintiff's  goods,  which  was 
willful  and  malicious,  or  a  willful  and  malicious  injury  to,  or 
destruction  of  them,  exemplary  damages  should  be  awarded." 

9  Strett  V.  Laamier,  34  Mo.,  469.  The  damages  for  the  wrongful  taking 
of  negotiable  paper  would,  prima  facie,  be  the  amount  due  thereon;  but  the 
insolvency  of  the  maker  may  be  shown  in  mitigation.  Latham  v.  Brown, 
16  la.,  118.  And  where  the  defendants,  with  a  knowledge  of  the  plaintifl["s 
rights,  took  and  converted  to  their  own  use  property  on  which  the  plaintiff 
had  a  valid  lien;  it  was  held,  that  the  defendants  were  liable  to  the  full 
amount  of  plaintiff 's  debt,  it  being  shown  that  the  property  was  at  least  of 
that  value.  Hunt  v.  Daniels,  15  la.,  146.  And  where  the  defendant  sold 
collateral  securities  pledged  to  him,  it  was  held,  in  an  action  by  the  bailor 
therefor,  that  the  measure  of  damages  would  be  the  value  of  the  securities, 
less  the  debt  secured  thereby.     Robinson  v.  Hurley,  11  la.,  410. 

"Green  v.  Craig.  47  Mo.,  90;  New  Orleans,  etc.,  R.  Co.  v.  Statham,  42 
Miss.,  607;  Perkins  v.  Hackleman,  26  Id.,  41;  Plumb  v.  Ives,  39  Conn.,  121 
(1872).    See,  anie,  §  71. 

"  Vandenburgh  v.  Truax,  4  Den.,  464;  Aurick  v.  O'Hara,  6  Blackf.,  258; 
Panton  v.  Holland,  17  John.,  92;  Antoine,  etc.,  v.  Ridge,  23  Cal.,  219; 
Waheman  v.  Robinson,  1  Bing.,  213. 

"  Waunmakerv.  Bower,  .39  Md.,  42  (1872);  Engle  v.  Jones,  51  Mo.,  316 
(1873);  Seely  v.  Alden,  61  Pa.  St.,  302;  Little  v.  Tingle,  26  Tnd.,  168; 
Green  v.  Craig,  47  Mo.,  90  (1870);  FarweU  v.  Warren,  51  111.,  467  (1869); 
Briscoe  v.  McElwean,  43  Miss.,  556  (1870);  Jamison  v.  Moore,  Id.,  598. 
See,  also,  on  the  subject  of  exemplary  damages.  Chap.  6,  ante. 

But  where  these  elements  do  not  exist,  only  ordinary  compensatory  dama- 


622  THE  Lx\W  OF  DAMAGES. 


Aggravation,  and  Exemplary  Damages. 


Thus,  in  an  action  for  damages  for  beating  the  plaintiff's  horse 
to  deatli,  it  was  held  proper  to  charge  the  jury  that  it  was  a  case 
in  which,  from  the  wantonness  and  cruelty  of  the  defendant's 
conduct,  the  jury  had  a  right  to  give  smart  money.  The 
Supreme  Court  of  New  York,  in  their  opinion  in  the  case,  say: 
"As  o-reat  barbarity  was  proved  on  the  part  of  the  defendant, 
we  think  the  charge  of  the  judge  was  correct,  and  should  liave 
been  better  satisfied  with  the  verdict  if  the  amount  of  dama- 
ges had  been  greater  and  more  exemplary."  " 

And  where  the  goods  of  the  plaintiff  were  unlawfully  seized 
under  an  attachment,  and  after  some  time  returned  greatly 
deteriorated  in  value;  in  an  action  for  damages  sustained  by 
such  unlawful  seizure,  it  was  held  competent  to  show,  as 
elements  of  damages,  that  the  plaintiff's  business  was  thereby 
broken  up,  and  she  reduced  to  poverty  and  deprived  of  her 
means  of  support.'*  But  in  such  an  action,  injury  to  the  plain- 
tiff's credit  will  not  be  considered  in  estimating  damages, 
unless  it  appears  to  be  intimately  connected  with  the  acts  of 
the  defendant  in  seizing  and  detaining  the  goods,  and  that  the 
acts  were  done  under  aggravating  circumstances  and  with  a 
malicious  intention  of  injuring  the  plaintiff." 

And  in  an  action  for  taking  a  slave  out  of  the  immediate 
possession  of  the  plaintiff,  it  was  held  proper  to  show  that  the 
defendant  at  the  time  of  the  trespass  used  abusive  language  to 

ges  are  proper.  Plumb  v.  Ives,  39  Conn.,  21  (1872).  And  in  Texas,  vin- 
dictive damages  cannot  be  recovered  against  the  estate  of  a  deceased  tres- 
passer, no  matter  how  aggravated  the  trespass.  Wright  v.  Donnell,  34 
Tex.,  291.  But  such  a  right  of  action  survives  in  Pennsylvania.  McCalson 
V.  Gregan,  1  Pa.  Law  Gaz.  R.,  414.  And  under  the  present  statute  of  Iowa 
such  a  right  of  action  would  survive.     Iowa  Code,  1873,  §  2525. 

'3  Woert  V.  Jenkins,  14  John.,  352.  See,  also,  Sears  v.  Lyons,  2  Stark., 
317;  Embler  v.  Myers,  6  H.  &  N.,  54;  30  L.  J.  Exch.,  71;  8  W.  R.,  665; 
Bellv.  Mid.  R.  Co.,  9  W.  R.,  C.  P.,  612. 

'4  Moore  v.  Schultz,  31  Md.,  418. 

's  Thomas  v.  Isett,  1  Greene  (la.),  470. 


INJUKIES  TO  PEESONAL  PEOPERTT.        623 

Mitigation. 

the  plaintiff,  as  indicating  the  animus  with  which  the  act  was 
done,  and  to  enhance  the  damages.** 

Where  the  defendant  forcibly  invaded  the  plaintiff's  plan- 
tation, and  under  circumstances  of  great  aggravation  carried  off 
some  slaves  and  frightened  away  others ;  and  it  appeared  that 
by  reason  thereof  a  quantity  of  wood  was  swept  away  from 
the  river  bank  by  a  flood;  and  by  reason  of  having  no  hands 
to  attend  to  his  crop  of  corn,  consisting  of  a  field  of  120  acres, 
the  horses,  mules,  and  other  stock  of  the  neighborhood,  broke 
into  the  corn  field  and  destroyed  a  large  part  of  it;  the  court 
said :  "  The  loss  of  services  of  the  slaves,  by  the  trespass,  neces- 
sarily resulting  from  the  abduction  of  a  part  of  them  and 
driving  off  the  others,  is  clearly  within  the  rule  of  damages  in 
trespass;  and  we  think  the  loss  of  the  cord-wood  as  proved, 
and  the  injury  to  the  corn  crop,  were  also  within  it."  " 

§  785.  Mitigation. — The  return  of  the  property  taken  to 
the  owner's  possession,  and  his  acceptance  of  it;  or  the  appro- 
priation of  it,  or  its  proceeds,  to  the  owner's  use,  by  his  ex- 
press or  implied   consent;  or  any  lawful  application  of  the 

'SRatlifF  V.  Huntley,  5  Ired.  (N.C),  545.  But  no  allowance  can  be  made 
for  counsel  fees.    Young  v.  Tustin,  4  Blackf.,  277. 

'7 Opinion  by  McLean,  J.,  in  McAfee  v.  CrofFord,  13  How.  (U.  S.),  447. 
The  learned  judge  in  this  case  further  remarked:  "  Had  the  plaintiff  not 
been  deprived  of  his  hands,  he  might  have  removed,  sold,  or  in  some  other 
manner  secured  the  wood  from  being  floated  off  by  the  flood.  In  regard  to 
the  com  and  the  wood,  if  the  damage  was  a  consequence  which  necessarily 
followed  the  loss  of  the  hands,  the  plaintiffs  in  error  were  liable.  *  *  *  The 
trespass  was  of  an  aggravated  nature;  notwithstanding  the  mitigating  facts 
set  up  by  the  defendants,  it  was  lawless  and  wholly  inexcusable.  It  was  a 
resort  to  physical  force  in  defiance  of  the  law;  and  under  such  circumstances 
as  to  endanger  life  and  property.  Such  a  proceeding  should  be  reprehended 
by  every  good  citizen.  It  gives  a  high  claim  to  the  injured  party  for  exem- 
plary damages." 

In  an  action  for  removing  a  fence,  the  plaintiff,  if  he  recovers,  may  have 
damages  growing  out  of  its  removal,  and  also  for  the  unavoidable  loss  of 
crops,  growing  at  the  time,  which  resulted  from  the  removal ;  and  the  wrong- 
doer in  such  a  case  is  responsible  for  all  the  consequences  directly  resulting 
from  the  wrongful  act.    Gray  v.  Waterman,  40  111.,  522. 


624  THE  LAW  OF  DAMAGES. 


Mitigation. 


same  to  the  benefit  of  the  owner,  may  be  shown  in  mitigation 
of  damages."  Thus,  where  one  wrongfully  took  goods  under 
a  belief  of  a  right  so  to  do,  and  they  were  afterwards  taken  on 
a  distraint  for  rent  due  from  the  owner  to  his  landlord;  in  an 
action  brought  by  the  owner  against  the  tort-feasor  therefor,  it 
was  held  that  these  fiicts  might  be  shown  in  mitigation  of 
damao-es.'*  So  in  an  action  against  a  sheriff  for  an  unauthor- 
ized  seizure  of  goods  under  a  fieri  facias^  he  was  permitted  to 
Bhow  that  the  goods  were  afterwards  taken  from  his  custody 
and  lawfully  sold,  on  a  distress  warrant  issued  against  the 
plaintiff  and  in  favor  of  a  third  person,  the  sale  being  inde- 
pendent of  any  agency  of  the  defendant.""  So  it  may  be  shown 
that  the  goods  did  not  belong  to  the  plaintiff,  and  that  they 
have  gone  to  the  use  of  the  true  owner  in  specie,  or  been  taken 
on  legal  process  in  satisfaction  of  the  same."  And  where  there 
is  an  illegal  or  irregular  seizure  or  sale  of  property  by  an  offi- 
cer who  has  applied  the  proceeds  of  the  sale  in  satisfaction  of 
final  process  against  the  owner,  it  has  been  held  that  this  was 
a  proper  matter  in  mitigation  of  damages." 

§  786.  But  this  doctrine  is  not  universally  applied,  and  it 
certainly  would  have  no  application  where  the  property  taken 
on  execution  or  attachment  by  an  officer,  was  exempt  from 
such  process.    Thus,  where  a  sheriff  sells  on  execution  property 

'SHaumer  v.  Wilsey,  17  Wend.,  91;  Coffin  v.  Field.  7  Cush.  (Mass.),  360; 
Greenfield  Bank  v.  Leavitt,  17  Pick,  1;  Pierce  v.  Benjamin,  14  Pick.  (Mass.), 
356;  Yale  v.  Saunders,  16  Vt.,  243. 

'^Huggins  V.  Whitney.  24  Wend.,  379. 

«> Sherry  v  Schuyler,  2  Hill.  (N.  Y.),  204.  See  also.  Irish  v.  Cloyes,  8  Vt., 
30;  Squire  v.  HoUenbeck,  9  Pick,  551;  Kaley  v.  Shed,  10  Met.,  317.  And 
■where  the  goods  have  been  illegally  sold  in  discharge  of  a  lien  and  bought 
in  by  the  owner,  who  sued  the  seller  in  trover  therefor,  these  facts,  it  was 
held,  might  be  shown  in  mitigation.  Curtis  v.  Ward,  20  Conn.,  204;  Ewing, 
V.  Blount,  20  Ala.,  694. 

"Crmer  v.  Pike,  2  Head.  (Tenn.),  398;  Wehle  v.  Haviland,  42  How.  Pr. 
(N.  Y.),  399. 

=^Farrar  v.  Barton,  5  Mass.,  395;  Prescott  v.  Wright,  6  Mass.,  20;  Pierce 
v.  Benjamin,  14  Pick.,  356;  Stuart  v.  Martin,  16  Vt.,  397. 


INJUKIES  TO  PEESONAL  PROPEETY.        G25 

Mitigation. 

of  the  plaintiff  which  is  exempt  from  execution,  he  is  held 
liable  to  the  owner  for  its  value."  And  in  snch  a  case  the 
officer  could  not  be  permitted  to  show,  in  reduction  of  the 
actual  dam?ges,  that  the  proceeds  of  the  property  sold  went 
to  satisfy  the  just  debt  of  the  plaintiff,  for  no  one  should  be 
permitted  to  wrongfully  take  and  convert  another's  property 
and  appropriate  the  same,  even  to  pay  the  owner's  debts,  with- 
out his  consent." 

But  in  a  suit  for  a  trespass,  where  exemplary  damages  are 
claimed,  the  defendant  may  show,  as  a  mitigating  fact,  that  he 
acted  in  good  faith  under  the  advice  of  counsel.'"* 

And  where  the  defendant  had  authority  to  take  property, 
which  he  has  managed  and  disposed  of  wrongfully,  though  in 
good  faith  and  with  common  prudence  and  due  diligence,  he 
is  liable  to  the  owner  only  for  the  amount  actually  realized  by 
him.'"'  Evidence  tending  to  repel  the  presumption  of  malice 
is  always  admissible,  at  least  in  mitigation  of  punitive 
damages." 


^Spencer  v.  Long,  39  Cal.,  700  (1870). 

=4McMichael  v.  Mason,  13  Pa.  St.,  214;  Dallman  v.  Fitler,  6  W.  &  S., 
323;  Sprague  v.  McKenzie,  63  Barb.  (N.  Y.),  61. 

=5Bohn  V.  Dunphy,  1  T.  Mon.  (Ky.),  333. 

=6  Rowan  v.  State  Bank,  45  Vt.,  160  (1867). 

=7 Gray  V.  Waterman,  40  111.,  522;  Reeder  v.  Purdy,  41  III.,  279;  Roth  v. 
Smith,  41  lU.,  314.  In  the  case  of  McAfee  v.  Crofford,  supra,  which  was  for  an 
aggravated  trespass  in  abducting  slaves,  the  court  held  that  the  plaintiff  in 
the  court  below,  was  entitled  to  recover  remote  losses  resulting  therefrom, 
but  it  was  also  held  proper  for  the  defendant  to  show  that  there  was  a 
judgment  against  the  plaintiff  as  principal  and  himself  as  surety,  and  his 
own  payment  of  that  judgment;  and  further,  that  all  the  circumstances  of  the 
case  might  be  shown  in  aggravation  or  in  mitigation  of  damages.  13  How. 
(U.  S.),  447.  See,  also,  as  to  naitigation,  ante,  §  110,  et  seq. 
40 


626  THE  LAW  OF  DAMAGES. 

Trover  and  Conversion. 


CHAPTER  XXXIII. 


TROYER  AND  CONYERSION. 

Section  791.    Distinction  between  Trespass  and  Trovei^Qeneral  Princi- 
ples. 

792.  Damages  for  Conversion. 

793.  Cause  of  Controversy— Time  and  Place  of  Value. 

795.  Value  at  the  Time  of  the  Conversion. 

796.  Exception  to  the  Rule. 

797.  Larger  Rule  of  Damages. 

799.  New  York— Rule  of  Fluctuating  Value. 

800.  Pennsylvania  -Rule  in. 

801.  Mississippi— Rule  Adopted. 

802.  California. 

803.  Other  States. 

804.  The  Rule  Should  be  the  Same  as  on  a  Breach  of  Contract  to 

deliver  Personal  Property. 

805.  Damages  Varied  with  the  Form  of  the  Action. 

806.  Technical  Doctrine  in  Different  Actions. 

807.  Reform  in  Practice  and  Procedure. 

808.  Argument  for  the  Fixed  Rule. 

811.  Argument  against  the  Rule  of  Fluctuating  Value  in  case  of 

Stocks. 

812.  Argument  for  the  Rule  of  Highest  Value. 

813.  The  Distinction  between  Stocks  and  other  Property  Con- 

sidered. 

814.  The  Sounder  Rule  Between  the  Extremes. 

815.  "Where  the  Property  is  Retiomed— Rule. 

816.  Mitigation. 

817.  Pretium  Affectionis— Articles  of  Virtu. 

818.  Accession. 


TEOVER  AITD  COJq'YEESIO:^r.  627 

Distinction  between  Trespass  and  Trover— Damages  for  Conversion. 

820.  Confusion. 

821.  Exemplary  Damages  for  the  Conversion. 

822.  "Where  the  Interest  is  Qualified  or  Limited. 

823.  Conversion  of  Notes  or  other  Choses  in  Action. 

§  791.    Distinction  between  Trespass  and  Trover. — 

It  is  not  our  purpose  to  consider  the  technical  rules  relating 
to  the  action  of  trover  at  common  law,  for  the  conversion  of 
personal  property,  but  only  the  rules  of  damages  generally  in 
case  of  a  conversion.  Conversion  is  a  kind  of  trespass,  and  an 
injury  to  the  rights  of  property  of  another.  And  the  general 
rules  and  principles  we  have  noticed  as  generally  applicable 
in  cases  of  trespass,  would  be  applicable  in  cases  of  conversion. 
The  distinction  between  the  two  actions,  of  trespass  and 
trover,  was  that  in  trespass  there  was  always  a  wrongful  act^vi 
et  armis^  or  a  taking,  de  bonis  asportatis;  whereas  in  trover^ 
for  a  conversion  the  act  or  taking  may  have  been  lawful,  as  by 
finding,  but  the  gist  of  the  action  was  the  unlawful  conversion. 
And  damages  were  held  recoverable  in  trover^  not  for  the  un- 
lawful taking,  or  for  the  manner  of  taking,  as  in  trespass^  but 
only  for  the  conversion^  And  whatever  may  be  the  name  of 
the  action  for  the  conversion,  it  is  practically  one  to  recover 
the  value  of  personal  property  wrongfully  converted. 

§  792.  Damages  for  Conversion. — The  measure  of  dam- 
ages for  a  conversion  is  generally  the  value  of  the  property  con- 
verted ;  and  to  which  interest  should  generally  be  added  from 
the  time  of  the  conversion.' 

'  Cooper  V.  Chitty,  1  Burr,  31;  W.  BL,  67;  2  HiU.  on  Torts,  95. 

=  Mercer  v.  Jones,  3  Camp.,  477;  Carter  v.  Feland,  17  Mo.,  383;  Kenecly  v. 
Strong,  14  John.,  128;  Beecherv.  Dennison,  13  Gray,  (Mass.)  354;  Dixon  v. 
Caldwell,  15  Ohio  St.,  412;  Sterling  v.  Gamttee,  18  Md.,  468;  Ryburn  v. 
Pryor,  14  Ark.,  (Barb.,)  505;  Ripley  v.  Davis.  15  Mich.,  75;  Yater  v.  Mullen, 
24  Ind.,  277;  Palkv.  Allen,  19  Mo.,  467;  Hurd  v.  Hubbel,  26  Conn.,  389; 
Cook  V.  Loomis,  26  Conn.,  483;  Vaughn -v.  Webster,  5Har.  (Del.),  256; 
Thrall  v.  Lathrop,  30  Vt.,  307;  Cutter  v.  Fanning,  2  la.,  580;  Haydcn  v. 
Bartlett,  35  Me.,  203;  Chaise  v.  Blasdall,  4  Minn.,  90;  Justice  v.  Mendell,  14 
B.  Mon.,  12;  Hildebrant  v.  Brown,  6  Tex.,  45;  Cassin  v.  Marshall,  18  Cal., 


628  THE  LAW  OF  DAMAGES. 

Cause  of  Controversy— Value  at  Time  of  Conversion. 

§793.  Cause  of  Controversy— Time  and  Place  of 
Value. — Controversies  frequently  arise  in  reference  to  the 
time  and  place  of  estimating  the  value;  and  as  to  whether 
damages  can  be  allowed  for  the  detention,  or  for  loss  result- 
ing from  being  deprived  of  the  use  of  the  property;  or  for 
the  sums  paid  for  the  use  of  other  property  of  a  similar 
kind,  in  the  place  of  the  property  converted;  and  whether 
the  plaintiff  can  recover  more  than  the  actual  market  value 
for  articles  of  special  interest  and  value  to  the  owner,  such 
as  family  pictures,  articles  of  ViV^?/,  and  the  like;  and  whether 
exemplary  damages  can  be  awarded  in  any  case.  On  these 
various  questions  the  authorities  are  not  uniform. 

§  794.  In  reference  to  the  time  when  the  value  of  the  prop- 
erty should  be  estimated,  it  is  diflScult  to  determine  the  ques- 
tion on  principles  that  are  entirely  satisfactory.  Should  it  be 
the  value  at  the  time  of  the  conversion,  or  the  highest  value 
at  any  time  between  the  original  conversion  and  the  commence- 
ment of  the  suit,  or  the  time  of  trial?  The  most  respectable 
authorities  are  arrayed  on  different  sides  of  this  question.  "We 
will  therefore  consider  the  rule  in  the  different  states. 

§  795.  Value  at  the  Time  of  the  Conversion.— The  rule 
of  valuation  of  the  property  at  the  time  of  the  conversion, 
with  interest,  prevails  in  Massachusetts,  where  there  is  no 
claim  for  special  damages.  Thus,  in  Pierce  v.  Benjamin, 
Morton,  J.,  in  delivering  the  opinion  of  the  Supreme  Court 
of  that  state,  remarks:      "The  general  rule  of  damages,  in 

689;  Parks  v.  Boston.  15  Pick.  (Mass),  198;  Andrews  v.  Durant,  18  N.  Y., 
496;  McCormick  v.  Penn.  Cent.  R.  R.  Co..  49  N.  Y.,  303;  King  v.  Orser,  4 
Duer  (N.  Y.),  431;  Robinson  v.  Hartridge.  13  Fla.,  501. 

See.  also,  Dillenbarh  v.  Jerome,  7  Cow.,  294;  Northern  Trans.  Co.  v. 
Selick,  52  111.,  249;  Pierce  v.  Benjamin,  14  Pick.,  356;  Greenfield  v.  Leavitt, 
17  Pick.,  1;  Chinery  v.  Vial,  5  H.  &  N.,  288;  Mayne  on  Damages,  215;  Read 
V.  Fairbanks,  13  C.  B.,  692;  Briesly  v.  Kendall,  17  Q.  B.,  937;  Lamonda  v. 
Daval,  9  Id.,  1030.  Damages  may  be  given  in  the  way  of  interest  beyond 
the  value  of  the  goods.    Mayne  on  Dam.,  203,  212. 


TEOYER  AND  CONVEESIOK  629 


Value  at  time  of  Conversion. 


actions  of  trover,  is  unquestionably  the  value  of  the  prop- 
erty taken,  at  the  time  of  the  conversion."'  But  to  this 
amount  interest  is  usually  added.'  This  general  rule  has  been 
recognized  in  Pennsylvania,'  Kentucky,'  Missouri,'  West  Yir- 
ginia,'  New  Hampshire,'"  Connecticut,"  Maine,''  Vermont," 

4  Pierce  v.  Benjamin,  14  Pick.,  356.  See.  also,  Parks  v.  Boston,  15  Pick., 
198;  Stone  v.  Codman,  15  Id.,  297;  Sargent  v.  FrankHn  Ins.  Co.,  8.  Id.,  90 j 
Greenfield  Bank  v.  Leavit,  17  Id.,  1;  Kennedy  v.  Whitewell,  4  Id.,  466; 
Johnson  v.  Sumner,  1  Met.,  172;  Fowler  v.  Oilman,  13  Id..  172;  Wyman  v.' 
Am.  Powder  Works,  8  Cush.,  168;  Hussey  v.  Manufacturers  &  Mechanics' 
Bank,  10  Pick.,  415;  Parsons  v.  Martin,  11  Gray  (Mass.),  Ill-  Selkirk  v 
Cobb,  13  Id.,  313. 

5  Bany  v.  Bennett,  7  Met.,  354.  See,  also,  to  the  same  effect,  Derby  v. 
Gray,  5  Minn.,  119;  Gray  v.  Portland  Bank,  3  Mass.,  364;  Sargent  v.  Frank- 
lin Ins.  Co.,  8  Pick.,  90;  McCormick  v.  Penn.,  etc.,  R.  Co.,  49  N.  Y.,  303. 

6  Smithurst  v.  Woolston,  5  W.  &  S.,  106;  Backenstoss  v.  Stabler,  33  Pa. 
St.,  251;  Neiler  v.  KeUey,  69  Id.,  403;  Gary  v.  Bright,  58  Id.,  70. 

7  LiUard  V.  Whitaker,  3  Bibb.,  92;  Sproule  v.  Ford,  3  Little,  25;  Dutton  v. 
Barnes,  Lit.  Sel.  Cas.,  137. 

8  Coffey  V.  National  Bank,  46  Mo.,  140  (1870),  where  in  a  recent  case  it 
was  held,  in  an  action  against  a  bank  for  convei-tmg  to  its  own  use  a  special 
deposit  in  specie,  that  the  measure  of  damages  was  the  market  value  of  the 
specie  in  legal  tender  notes  at  the  time  and  place  of  the  conversion,  with 
interest. 

9  Arnold  v.  Kelly,  4  W.  Va.,  642  (1871),  where  in  an  action  for  the  con- 
version of  a  horse  that  had  been  rendered  worthless  and  then  returned,  it 
was  held  that  the  measure  of  damages  was  the  value  of  the  horse  at  the  time 
of  the  conversion,  and  that  the  jury  might  determine  the  value  from  the 
price  paid  for  it,  a  short  time  before  the  conversion. 

»  Frothingham  v.  Morse,  45  N.  H.,  545.  See,  also.  Cross  v.  Bro^ra.  41  N. 
H.,  283,  where  the  defendant  receipted  to  an  officer  for  property  levied  upon, 
and  suffered  the  debtor  to  take  it;  it  was  held,  in  an  action  of  trover  by  the 
officer,  that  the  measure  of  damages  was  the  value  of  the  property  fixed  in 
the  receipt,  the  amount  of  the  judgment  on  which  the  process  issued,  being 
more  than  the  value  of  the  property. 

"Hurd  V.  Hubbel,  26  Conn.,  389;  Cook  v.  Loomis,  Id.,  483-  Luckey  v 
Roberts,  25  Id.,  486. 

"  Robinson  v.  Barrows,  48  Me.,  186;  Hayden  v.  Bartlett,  35  Id.,  203; 
Brown  v.  Hayes,  52  Id.,  578. 

'3  Park  V.  McDaniels,  37  Vt.,  594;  Crumb  v.  Oaks,  38  Id.,  566. 


630  THE  LAW  OF  DAMAGES. 

Value  at  time  of  Conversion. 

Illinois/^  Michigan,'*  "Wisconsin,"  Kentucky,"  Louisiana," 
Mississippi,'"  Nevada,'"  Florida,"  Delaware,^'  Maryland," 
Minnesota,'^  Missouri,"  New  York,"  Texas,"  and  Iowa;" 
although  it  has  been  qualified  if  not  ignored  recently,  in  some 
of  these  states.  This  was  also  the  doctrine  held  by  Mr.  Justice 
Story,  in  the  United  States  Circuit  Court.  On  this  subject  he 
remarks:  "  I  am  of  opinion  that  the  rule  is  the  value  of  the 
property,  at  the  market  price,  at  the  time  of  the  conversion."" 
And  this  seems  to  be  the  general  English  rule.'" 

'4  Smith  V.  Dunlap,  12  lU.,  184;  Heagy  v.  Hill,  12  Id.,  99;  Otter  v.  Will- 
iams, 21  Id.,  118;  Cushman  v.  Haines,  46  Id.,  145;  Sturgesv.  Keith,  57  Id., 
451,  where  it  was  applied  to  R.  R.  stocks  converted.  See,  also,  Turner  v. 
Retter,  58  Id.,  2G4. 

'sSymes  v.  Oliver,  13  Mich.,  9;  Bates  v.  Steinall,  19  Id.,  91;  Ripley  v. 
Davis,  15  Id.,  75. 

'^  Ainsworth  v.  Bowen,  9  Wis.,  348. 

■7  Freeman  v.  Luckett,  2  J.  J.  Marsh,  390;  Greer  v.  Powell.  1  Bush.  (Ky.), 
489;  Jonson  v.  Sumner,  1  Met.,  172;  Saunders  v.  Vance,  7  T.  B.  Mon.  (Ky.), 
209;  Lillard  v.  Whitaker,  3  Bibb.  (Ky.),  92. 

'^  Vance  v.  Tourne,  13  La.,  225. 

'9  Whitfield  v.  Whitfield,  40  Miss.,  362;  Bickell  v.  Colton,  41  Id.,  368. 
And  a  wrongdoer  is  liable  for  the  value  of  the  property  wrongfully  converted, 
though  it  be  afterwards  destroyed  by  a  public  enemy.     Id.,  42  Miss.,  420. 

=°  O'Meara  v.  The  North  Am.  Mining  Co.,  2  Nev.,  112;  Carlyon  v.  Lannan, 
4  Id.,  156;  Boylan  v.  Huguet,  8  Id.,  345.  But  in  this  case  special  damages 
were  allowed  m  addition  to  the  value,  and  interest. 

"  Robinson  v.  Hartridge,  13  Fla.,  501  (1871). 

=^  Vaughan  v.  Webster,  5  Harr.  (Del.),  256. 

=3  Sterling  v.  Garritee,  18  Md.,  468;  Baltimore,  etc.,  Ins.  Co.  v.  Dalrymple, 
25  Id.,  269;  Thomas  v.  Steinhamer,  29  Id.,  268. 

=^4  Derby  v.  Gallup.  5  Minn.,  119. 

=s  State  V.  Smith,  31  Mo.,  566. 

=^  King  V.  Orser,  4  Duer.  (N.  Y.),  431;  Hendricks  v.  Decker,  35  Barb.  (N. 
Y.),  298;  Ward  v.  Bensan,  31  How.  (N.  Y)Pr.,  411;  Laplace  v.  Aupaix, 
Johns.  Cases,  406. 

^7  Moore  v.  Aldrich,  25  Tex.,  276. 

=8  Cutter  V.  Fanning,  2  la.,  581. 

^  Watt  V.  Potter,  2  Mason,  77.     See  also  authorities  cited,  ante,  note  2. 

3°  See,  Opinion  of  Ld.  Ellenborough,  in  Mercer  v.  Jones,  3  Camp.,  477. 
See,  also,  Falk  v.  Fletcher,  18  C.  B.,  403  (1865);  Read  v.  Fairbanks,  24  Eng. 
L.  &  E.,  220;  s.  c,  13  C.  B.,  692;  Fisher  v.  Prince,  3  Buit,  1363  (1862;.  But 
in  Greening  v.  Wilkinson,  1  C.  &  P.,  625,  it  was  held  that  the  jury  might 
find  as  damages  the  value  of  the  property,  in  their  discretion,  at  a  subse- 
quent time. 


TKOYEK  AND  CONYERSIOK  631 


Exception  to  the  Rule— Larger  Rule  of  Damages. 


§  796.  Exception  to  the  Rule  .—Instances  have  occurred 
however,  where  special  damages  have  been  claimed  and 
allowed.  Thus,  in  trover  for  the  conversion  of  a  horse,  it  was 
suggested  by  Park,  B.,  that  special  damages  might  be  recov- 
ered for  money  paid  for  another  horse,  to  use  in  the  place  of 
the  one  wrongfully  converted.''  So,  where  the  owner  of  prop- 
erty wrongfully  converted  has  been  subjected  to  expense  and 
loss  of  time  in  searching  for  it,  a  reasonable  sum  has  some- 
times been  allowed  therefor,  in  addition  to  the  value  of  the 
property  and  interest." 

In  trespass  there  could  be  no  question  of  the  propriety  of 
allowing  such  items  as  damages.  And  where  technical  forms 
of  action  are  abolished  and  a  more  liberal  spirit  of  reform 
prevails,  there  could  be  no  reasonable  objection  to  the  allow- 
ance of  such  elements  as  damages,  on  a  proper  statement  of 
the  facts  of  the  case  in  the  pleading  and  proof  of  the  same. 

§797.  Larger  Rule  of  Damages.— In  trover  for  the 
conversion  of  the  plaintiff's  tools,  by  reason  of  which  he  was 
prevented  from  working  at  his  trade  as  a  carpenter,  and  w^as 
thereby  greatly  impoverished;  it  was  held,  that  the  plaintiff 
was  entitled  to  the  special  damages  directly  flowing  from 
the  unlawful  detention  of  his  tools."' 

And  where  the  value  of  the  property  and  interest  will  not 
fully  compensate  the  owner  for  a  wrongful  conversion,  or 
where  the  general  rule  will  enable  the  wrongdoer  to  realize  a 
profit  and  be  benefitted  by  the  conversion,  it  has  been  held, 


33  Davis  V.  Oswell,  7  Car.  &  Payne,  804.  But,  see,  Hurd  v,  Hubbel,  26 
Conn.,  389;  Saunders  v.  Brosius,  52  Mo.,  50;  Brizsee  v.  Maybee,  21  Wend., 
144;  Farmer's  Bank  v.  McKee,  2  Pa.  St.,  318. 

34  McDonald  v.  Nortli,  47  Barb.,  530;  Forsythe  v.  Wells.  41  Pa.  St.,  291; 
Bennett  v.  Lockwood,  20  Wend.,  223.  We  have  noticed  that  such  items 
were  proper  to  be  considered  in  assessing  damages  where  the  action  is  for 
the  trespass.    See  ante,  §  781  and  authorities  there  cited. 

35Bodley  v.  Reynolds,  10  Jur.,  310;  8  Q.  B.,  779;  15  L.  J.,  Q.  B.,  N.  S. 
219  (1846).  See,  also,  Cook  v.  Hartle.  8  C.  &  P.,  668;  ShotweU  v.  Wen- 
dover,  1  John.,  65.    Mayne  on  Dam.,  212. 


632  THE  LAW  OF  DAMAGES. 

Larger  Rule  of  Damages. 

that  under  proper  allegations  in  the  pleading,  larger  damages 
should  be  given.  Thus,  in  Suydiin  v.  Jenkins^  Duer,  J., 
remarks:  "It  maj  be  shown,  that  had  the  owner  retained  pos- 
session he  would  have  derived  a  larger  profit  from  the  use  of 
the  property  than  the  interest  upon  its  value;  or  that  he  had 
contracted  to  sell  it  to  a  solvent  purchaser  at  an  advance  upon 
the  market  price;  or  that  when  wrongfully  taken  or  converted, 
it  was  in  the  course  of  transportation  to  a  profitable  market, 
where  it  would  certainly  have  arrived;  and  in  each  of  these 
cases  the  difference  between  the  market  value  when  the  riirht 
of  action  accrued,  and  the  advance  which  the  owner,  had  he 
retained  the  possession,  would  have  realized,  ought  plainly  to 
be  allowed  as  compensatory  damages,  and  as  such  to  be  included 
in  the  amount  for  which  judgment  is  rendered.  So,  where  it 
appears  that  the  owner  in  all  probability  would  have  retained 
possession  of  the  property  until  the  time  of  trial  or  judgment, 
and  if  then  of  greater  value  than  when  he  was  dispossessed, 
the  difference  may  fairly  be  considered  as  part  of  the  actual 
loss  resulting  to  him  from  the  change  of  possession,  and  should 
therefore  be  added  to  the  original  value  to  complete  the 
indemnity.  -5^  *  *  Even  where  the  market  value  of  the 
property,  when  the  right  of  action  accrued,  would  more  than 
suffice  to  indemnify,  it  is  not  in  all  cases  that  the  liability 
should  be  limited  to  that  amount.  It  is  for  the  value  that  he 
[the  defendant,]  has  himself  realized  or  might  realize  that  he 
is  bound  to  account,  and  for  which  judgment  should  be  ren- 
dered against  him.  Hence,  should  it  aj)pear  in  evidence  upon 
the  trial  that  he  had  in  fact  obtained  on  the  sale  of  the  prop- 
erty a  larger  price  than  its  value  when  he  acquired  possession, 
or  that  he  still  retained  possession,  and  that  an  advance  price 
could  then  be  obtained,  in  each  case,  the  increase  upon  the 
original  value,  (which  would  otherwise  remain  as  profit  in  his 
hands,)  ought  to  be  allowed  as  cumulative  damages.  *  *  -5^ 
It  seems  to  us  exceedingly  clear,  that  the  highest  price  for 
which  the  property  could  have  been  sold,  at  any  time  after 


TROYER  AND  CONYERSION.  633 

Larger  Rule  of  Damages. 

the  right  of  action  accrued,  and  before  the  entry  of  the 
judgment  cannot,  except  in  special  cases,  be  justly  consid- 
ered as  the  measure  of  damages.  When  the  evidence  jus- 
tifies the  conclusion  that  the  higher  price  would  have  been 
obtained  by  the  owner  had  he  kept  possession,  or,  has  been 
obtained  by  the  wrongdoer,  we  have  admitted  and  shown  that 
it  ought  to  be  included  in  the  estimate  of  damages;  in  the  first 
case  as  a  portion  of  the  indemnity  to  which  the  owner  is 
entitled,  and  in  the  second,  as  a  profit  which  the  wrongdoer 
cannot  be  permitted  to  retain;  but  we  cannot  admit  that  the 
same  rule  is  to  be  followed  where  nothing  more  is  shown  than 
a  bare  possibility  that  the  highest  price  would  have  been  real- 
ized, and  still  less  when  it  is  shown  that  it  would  not  have 
been  obtained  by  the  owner,  and  has  not  been  obtained  by  the 
wrongdoer." '' 

§  798.  From  the  reasoning  and  conclusions  of  the  learned 
judge  in  this  case,  it  is  an  easy  step  to  a  general  rule  allowing 
in  all  cases  the  plaintiff  to  recover  for  a  wrongful  conversion 
of  property,  the  higest  market  value  of  the  same  at  any  time 
between  the  conversion  and  the  trial,  which  seems  now  to  be 
the  rule  in  that  state,  and  several  others,  where  the  property  is 
of  a  fluctuating  value,  if  there  has  been  reasonable  diligence 
in  the  commencement  and  prosecution  of  the  action,''^     And  in 

36  Suydam  v.  Jenkins,  3  Sandf.,  614  (1850).  See,  also,  Clark  v.  Pinny,  7 
Cow.,  681;  West  v.  Wentworth,  3  Cow.,  82,  where  the  larger  rule  of  dam- 
ages was  applied  to  contracts  to  dehver  property  paid  for. 

37  Burt  V.  Dutcher,  34  N.  Y.,  493;  Morgan  v.  Gregg,  46  Barb.,  Id.,  183; 
WUson  V.  Mathews,  24  Id.,  295.  See,  also,  Douglass  v.  Kraft,  9  Cal.,  562; 
Hamer  v.  Hathaway,  33  Cal.,  117;  Weymouth  v.  Chicago,  etc.,  R.  Co.,  17 
Wis.,  550;  Page  v.  Fowler,  28  Cal.,  605;  37  Cal.,  100;  39  Cal.,  415.  See  the 
same  rule,  provided  for  by  the  Code  of  California,  ante,  §  19,  note  25.  See, 
also,  Greening  v.  Wilkinson.  1  C.  &  P.,  625;  Chinery  v.  Vial,  5  H.  &  N.,  288; 
29  L.  J.,  Exch.,  180;  8  W.  R.,  629,  where  it  was  held,  that  where  the  plain- 
tiff bought  sheep  on  credit,  and  left  them  in  the  custody  of  the  vendor,  and 
he  without  any  default  on  the  part  of  the  vendee,  resold  the  same,  the  meas- 
ure of  damages  was  not  limited  to  the  value  of  the  sheep,  but  the  loss 
plaintiff  sustained  by  not  having  the  sheep  delivered  to  him  at  the  price 
agreed  upon. 


634  THE  LAW  OF  DAMAGES. 


New  York— Fluctuating  Rule  of  Valuation. 


various  states,  where  the  general  and  limited  rule  is  applied 
in  case  of  the  conversion  of  property  generally,  the  fluctuat- 
ing rule  is  applied  in  case  of  the  conversion  of  stocks,  which 
we  shall  hereafter  notice.  We  will  proceed  to  consider 
instances,  in  the  different  states,  where  the  fluctuating  and 
larger  rule  of  damages  has  been  applied. 

§  799.    New  York— Rule  of  Fluctuating  Value.— 

Notwithstanding  the  decisions  we  have  referred  to,  where  the 
general  rule  is  recognized,  and  the  qualification  of  the  same 
in  Suydam  v.  Jenkins^  sujpra^  the  current  of  modern  decisions 
in  N'ew  York,  sustains  the  rule  of  the  highest  value  of  the 
property  converted  up  to  the  time  of  trial,  in  all  cases  where 
the  property  is  of  ?i.  fluctuating  value. 

This  qualification,  however,  would  seem  to  be  unimportant, 
as  it  is  doubtful  if  there  is  any  property  entirely  stable  in 
value,  and  besides,  if  property  did  not  fluctuate  there  would 
be  no  advantage  in  the  larger  rule.  Thus,  in  Eomaine  v.  Van 
Allen,  which  was,  however,  an  action  for  the  wrongful  conver- 
sion of  railway  shares,  pledged  to  the  defendant  as  collateral 
security,  Kosekrans,  J.,  in  delivering  the  opinion  of  the  Court 
of  Appeals  of  that  state,  remarks:  "Although  the  general 
rule  of  damages  in  trover,  may  be  the  value  of  the  property 
at  the  time  of  the  conversion,  with  interest,  or  that  value  when 
the  chattel  has  a  determinate  and  fixed  value,  yet,  when  there  is 
any  uncertainty  or  fluctuation  attending  the  value,  and  the  chat- 
tel afterwards  rises  in  value,  the  plaintiff  can  only  be  indemnified 
by  giving  him  the  price  of  it  at  some  period  subsequent  to 
the  conversion;  and  the  necessary  result  of  all  the  decisions  in 
my  judgment,  is,  that  in  such  cases,  the  plaintiff  is  entitled  to 
recover  the  highest  market  value  of  the  property  at  any  time 
intermediate  the  conversion  and  the  trial."^* 

And  the  same  rule  was  subsequently  sustained  after  a  full 
consideration  of  the  question,  in  an  action  for  an  unauthor- 

38  26  N.  Y.,  309  (1863).    But  see,  Brass  v.  Worth,  40  Barb.,  648  (1863). 


TROYER  AND  CONYERSION".  635 

Pennsylvania— Rule  in. 

ized  sale  of  wheat  f^  and  also  in  an  action  for  the  conversion 
of  hops;"  and  in  an  action  for  the  conversion  of  grain;"  and 
in  an  action  for  the  conversion  of  a  railroad  bond,  loaned  by 
the  plaintiff  to  the  defendant ;  in  which  last  case  the  Superior 
Court  of  the  City  of  New  York,  held  that  the  measure  of 
damages  was  the  highest  market  value  of  the  property  between 
the  time  of  the  conversion  and  the  time  of  trial;  and  that 
where  the  plaintiff  gives  proof  of  value  at  a  certain  time 
between  such  periods,  evidence  of  its  value  at  other  periods 
offered  by  the  defendant,  will  be  excluded," 

§  800.  Pennslyvania— Rule  in— The  enlarged  rule  of 
fluctuating  value  has,  in  Pennsylvania,  been  applied  only  in 
cases  of  the  conversion  of  stocks.  And  when  the  value  of  stocks 
has  advanced  since  the  conversion  of  them,  the  measure  of  dam- 
ages for  the  same  has  been  held  in  that  state,  to  be  the  highest 
market  value  between  the  conversion  and  the  trial.  And  it  is 
there  generally  held,  that  the  restricted  rule  of  value  at  the 
time  of  the  conversion  does  not  apply,  where  the  property 
cannot  be  obtained  elsewhere;  or  when  from  restrictions  on 
its  production  or  other  causes,  its  price  is  necessarily  subject 
to  very  considerable  fluctuations;  or  where  the  limited  rule 
would  hold  out  temptations  to  wrongful  conversions,  as  in 
cases  of  stocks  which  are  peculiarly  subject  to  such  fluctua- 

39  Scott  V.  Rogers,  31  N.  Y.,  676  (1864). 

40  Burt  V.  Dutcher,  34  N.  Y.,  493. 

4»  Morgan  v.  Gregg,  46  Barb.,  183.  See  also,  the  same,  in  Mathews  v. 
Cole,  56  Barb.,  430;  49  N.  Y.,  57  (1870). 

42  Naumann  v.  CaldweU,  2  Sweeney  (N.  Y.),  212  (1870).  See  also,  the  " 
same,  Markham  v.  Jaudon,  41  N.  Y.,  235,  which  related  to  a  contract  to  carri/ 
stocks;  and  Lobdell  v.  StoweU,  51  N.  Y.,  70,  which  was  an  action  for  the 
conversion  of  grain,  and  where  the  same  doctrine  was  held.  But  see,  Math- 
ews V.  Coe,  49  N.  Y.,  57,  which  was  an  action  for  the  conversion  of  ware- 
house receipts  for  com;  and  in  which  case  Chief  Justice  Church  remarks,  in 
reference  to  the  fluctuating  rule,  that  "it  is  not  so  firmly  settled  as  to  be 
beyond  the  reach  of  review  whenever  necessary."  See  also,  as  to  the  quali- 
fication of  the  enlarged  rule,  Baker  v.  Drake,  8  Alb.  L.  Jour.,  340  (Sept., 
1873,  Ct.  of  Appeals). 


636  TELE  LAW  OF  DAMAGES. 

Mississippi— Biile  Adopted-  California. 

tions  in  value,  by  making  conversions  profitable  to  the  wrong- 
doer, if  the  restricted  rule  was  adopted."  This  rule  was  also 
applied  in  that  state  in  an  action  for  a  failure  to  replace  bor- 
rowed stock;  and  the  measure  of  damages  was  held  to  be  the 
highest  value  to  the  time  of  trial."* 

§  801.  Mississippi— Rule  Adopted  —The  court  of  last 
resort  in  Mississippi  has  recently  made  the  following  excep- 
tions to  the  limited  rule  of  value: 

1.  Where  the  original  act  was  wrongful. 

2.  Where  it  was  bona  fide^  but  the  defendant  subsequently 
disposed  of  the  property  wrongfully,  and  with  knowledge  of 
the  plaintiff's  claim. 

3.  Where  the  taking  and  disposition  of  the  property  w^ere 
both  in  good  faith,  but  the  defendant  seeks  to  retain  the  excess 
of  the  proceeds  of  the  sale  over  the  market  value,  at  the  time 
of  the  conversion,  as  a  speculation. 

4.  Where  the  property  has  some  peculiar  value  to  the 
plaintiff,  and  is  w^illfully  taken  or  withheld  by  the  defendant. 

Whenever  these  circumstances  or  any  of  them  occur,  the 
rule  of  damages  is  not  limited  to  the  value  of  the  property  at 
the  time  of  the  conversion,  but  is  left  to  the  jury  to  be  de- 
termined from  all  the  circumstances  of  the  case." 

§  802.  California- — In  California,  where  the  property 
converted  has  a  fixed  value,  the  measure  of  damages  is  held 
to  be  that  value  at  the  time  of  the  conversion,  without  inter- 
est; but  where  the  value  is  fluctuating  the  plaintiff  is  held 
entitled  to  recover  the  highest  value,  either  at  the  time  of  the 
conversion  or  afterwards."     And,  in  an  action  in  that  state  for 

43  Bank  of  Montgomery  v.  Reese,  26  Pa.  St.,  143. 

44  Musgrove  v.  BeckendorfF,  53  Pa.  St.,  310.  See  also,  Phillipp's  Appeal,  68 
Pa.  St.,  130;  Lauback  v.  Lauback,  Sup.  Ct.  Pa.,  Marcli  T.,  1873;  Neilerv. 
KeUy,  69  Pa.  St.,  403. 

«  Whitfield  V.  Whitfield,  40  Miss.,  352;  s.  c,  44  Miss.,  2-54.  See  also, 
Bickel  V.  Colton,  41  Miss.,  368. 

^  Douglass  V.  Kraft,  9  Cal.,  562;  Earner  v.  Hathaway,  33  Cal.,  117.  See 
also,  Hisler  v.  Carr,  34  Cal.,  64,  where  it  was  held  that  the  damage  was  the 
value  at  the  place  of  detention,  at  the  time  the  action  was  commenced. 


TEOYER  AND  COXYERSION.  637 


other  States- The  Rule  Should  be  the  Same  as  Breach  of  Contract,  etc. 


damages  for  the  wrongful  conversion  of  a  haj-crop,  worth  at 
tlie  time  not  more  than  $3,500,  and  subsequently,  owing  to  a 
severe  drought,  the  market  value  of  the  hay  was  largely  in- 
creased; and  the  jury,  having  been  allowed  to  assess  the  highest 
market  value  of  the  hay  prevailing  at  any  time  after  tlie  con- 
version, with  interest,  assessed  it  at  $25,763.75;  the  court 
held,  that  the  correct  measure  of  damaores  was  the  hio-hest 
market  value  within  what,  under  the  circumstances  of  the 
case,  was  a  reasonable  time  after  the  property  was  converted 
in  which  to  bring  suit,  and  interest  from  that  time.  And,  as 
the  hay  had  been  converted  in  1863,  and  the  action  was  not 
commenced  until  1869,  the  court  considered  that  too  wide  a 
range  had  been  given  to  the  jury,  and  therefore  set  aside  the 
verdict."' 

§  803.  Other  States  —The  larger  rule  of  damages  in 
case  of  conversion  has  also  been  recognized  in  Indiana,'*  Ala- 
bama,"' South  Carolina,'"  and  Maine." 

§  804.  The  Rule  Should  be  the  Same  as  for  a  Breach 
of  Contract  to  Deliver  Personal  Property.— In  treating 
of  the  measure  of  damages  on  breaches  of  contracts  to  deliver 
personal  property,  we  noticed  that  two  different  rules  pre- 
vailed in  different  states  on  the  subject  of  damages;  that  in  some 
states  the  measure  of  damages  was  the  value  of  the  property 
at  the  time  and  place  of  delivery;  and  in  others,  where  the 
price  had  been  paid,  the  highest  market  value  of  the  property 
between  the  time  when  it  should  have  been  delivered  and  the 

47  Page  V.  Fowler,  39  Cal.,  412. 

48  Ellis  V.  Wire,  33  Ind.,  127;  Bank  of  State  v.  Burton,  27  Ind.,  426. 

49  Ewing  V.  Blount,  20  Ala.,  694;  Jenkins  v.  McConico,  26  Ala.,  213; 
Johnson  V.  Marshall  34  Ala.,  522;  Freier  v.  Cowles,  44  Ala.,  314,  where 
the  general  doctrine  of  the  highest  value  of  the  property  to  the  time  of  trial 
is  held  to  be  the  proper  measure  of  damages. 

s°  Kid  V.  Mitchel,  1  Nott&  McC,  334. 

5'  Freeman  v.  Hamood,  49  Me.,  195,  where  the  defendant  was  held  liable 
for  the  value  of  the  stocks  at  the  time  of  the  conversion,  with  dividends  and 
interest. 


638  THE  LAW  OF  DAMAGES. 


Damages  Varied  with  the  Form  of  the  Action. 


commencement  of  the  suit,  or  even  the  time  of  trial  in  some 
states.'"  All  the  reasons  in  support  of  the  larger  rule  of  dam- 
ages in  such  cases,  would  apply  in  favor  of  the  larger  rule  in 
cases  of  the  wrongful  conversion  of  property;  and  in  addition 
to  which  other  reasons  might  be  adduced  in  support  of  the 
larger  rule  in  the  latter  case.  And  the  rule  should  be  the 
same  in  the  action  of  trespass  <le  honis  asportatls  and  replevin. 
Thus,  in  replevin,  if  the  plaintiff  fails  to  obtain  the  property 
although  he  has  a  judgment  for  the  same,  and  a  conditional 
judgment  for  its  value  in  case  of  a  failure  to  return;  or  incase 
the  plaintiff  obtains  the  property  on  the  writ,  and  there  is  a 
judgment  against  him  in  the  suit,  and  he  fails  to  return  the 
property  to  the  owner,  and  the  owner  brings  suit  on  the  re- 
plevin bond,  the  measure  of  damages  should  be  the  same  as 
in  case  of  a  breach  of  contract  to  deliver,  or  for  a  conversion 
of  the  property. 

§  805     Damages  Varied  with  the  Form  of  the  Action 

— "We  have  noticed  that  at  common  law  the  measure  of  dam- 
ages varied  with  the  different  actions;  that  the  plaintiff  "might 
have  his  choice  of  actions  in  many  cases,  and  that  the  judg- 
ment and  skill  of  the  pleader  was  frequently  taxed  in  making 
that  choice  of  actions  which  would  be  most  favorable  for  the 
plaintiff.  Thus,  where  a  party  could  bring  trespass  he  might 
waive  the  trespass,  and  thereby  waive  any  claim  for  aggravated 
or  vindictive  damages  by  reason  of  any  outrageous  manner  of 
the  taking,  and  bring  trover  for  the  conversion;  or,  in  case  of 
a  sale  of  the  property  by  the  trespasser,  he  might  waive  the 
tort  and  sue  in  assumpsit  for  the  consideration  received  there 
for  by  the  wrongdoer;'"  or  he  could  sue  in  replevin  for  the 
goods,  and  thereby  repossess  himself  of  the  property,  or  in 
case  of  a  failure  so  to  do,  secure  a  judgment  for  its  value. 

ssSee,  ante,  §244,  et  seq. 

5«Bac.  Abr.  Trover,  A.;  Lord  Mansfield,  in  Lindon  v.  Hooper,  Cowp.,  419; 
Lord  Ellenborough,  in  Hunter  v.  Prinsep,  10  East.,  378,  391. 


TROYER  AND  C0:N'VERSI0:N".  639 


Technical  Doctrine  in  Different  Actions— Reform  in  Practice,  etc. 

In  trover  the  same  rule  was  generally  adopted  as  in  trespass, 
except,  perhaps,  as  to  consequential  and  exemplary  damages." 
But  consequential  damages  have  sometimes  been  allowed  in 
trover,  as  where  the  plaintiff  has  been  subjected  to  expense 
and  loss  of  time  in  searching  for  the  property  wrongfully 
taken  and  converted.'* 

§  806.  Technical  Doctrine  in  Diiferent  Actions.— The 

difference  in  the  measure  of  damages,  in  these  various  actions 
for  torts,  was  only  maintained  on  technical  grounds  pertain- 
in  o-  to  the  various  forms  of  actions.  The  facts  in  either  case 
might  be  the  same,  and  there  would  seem  to  be  no  reasonable 
grounds  for  any  difference  on  the  same  facts  in  the  amount  of 
damages,  especially  where  the  facts  are  set  forth  and  sufficient 
damages  claimed  in  the  pleadings. 

§807.    Reform  in  Practice  and  Procedure  .—Under 

the  reforms  adopted  in  the  mode  of  procedure  in  many,  if  not 
most  of  the  states,  the  common  law  forms  with  their  technic- 
alities are  abolished,  as  we  noticed  in  the  introductory  chapter, 
and  there  would  seem  to  be  no  longer  any  necessity  for  the 
different  rules  of  damages  based  upon  the  different  forms  of 
action.  A  uniform  rule  in  that  respect  might  be  adopted, 
resting  on  the  facts  of  the  case  rather  than  any  technicalities 
of  forms.  And  under  this  reform,  the  remarks  of  the  learned 
justice,  in  Suydam  v.  Jenkins,  "  that  the  rule  for  ascertaining 
the  sum  to  be  recovered  by  the  injured  party,  in  all  cases 
where  personal  property  is  wrongfully  taken  or  detained, 
whether  by  force,  fraud,  or  process  of  law,  (leaving  out  of 

57Brizsee  v.  Maybee,  21  Wend.,  144;  Farmer's  Bank  v.  McKee,  2  Pa.  St., 
318;  Stark,  on  Ev.,  Art  Trover.  See,  also,  Hurd  v.  HubbeU,  26  Conn.,  389, 
where  it  was  held  that  consequential  damages  were  not  allowable.  Saun- 
ders V.  Brosius,  52  Mo.,  50. 

ssMcDonaldv.  North,  47  Barb.,  530;  Forsyth  v.  Wells,  41  Pa.  St.,  291. 
See,  Qlso,post,  §821  and  notes.  Incaseof  a  conversion  of  property  by  a  sale  of 
the  same,  the  owner  may  waive  the  tort  and  sue  for  the  consideration  re- 
ceived by  the  wrong  doer.    Howel  v.  Graves,  27  Ark.,  365. 


640  THE  LAW  OF  DAMAGES. 

Argument  for  the  Fixed  Rule. 

view  the  exceptional  cases  in  which  exemplary  damages  are 
given,)  ought  to  he  the  same  without  relerenee  to  the  form  of 
the  actions,"  has  peculiar  force  and  application.'"  And  it  is 
even  questionable  if  the  exception  made  would  be  necessary, 
where  a  party  is  required  only  to  set  forth  in  his  pleading,  in 
plain  and  concise  language,  the  facts  constituting  his  claim 
for  damages. 

§  808.  Argument  for  the  Fixed  Rule.— We  will  present 
the  argument  in  support  of  the  fixed  rule  of  the  value  at  the 
time  of  the  conversion,  or  when  the  property  should  have  been 
delivered,  whether  it  be  stock  or  other  ])roperty. 

The  Supreme  Court  of  Xew  Hampshire,  on  this  (juestiou,  in 
case  of  the  failure  to  deliver  property  according  to  contract,  in 
Pinherton  v.  Manchester  cfe  Laurence  R.  Co.^  say :  ''  To  hold 
that  the  plaintiff  might  elect,  as  the  rule  of  damages  in  all 
cases,  the  highest  market  price  between  the  time  fixed  for 
delivery  and  the  day  of  trial,  which  is  often  many  years  after 
the  breach,  would  in  many  cases  be  grossly  unjust,  and  give 
the  plaintiff  an  amount  of  damages  disproportionate  to  the 
injury;  for  in  most  of  these  cases,  had  the  articles  been  deliv- 
ered according  to  contract,  they  would  have  been  sold  or  con- 
sumed within  the  year.  *  *  *  So  there  may  be  repeated 
trials  of  the  same  case.  Shall  there  be  a  different  measure  of 
value  at  each  trial? "  " 

Objection  to  the  larger  rule  is  also  made  on  the  ground 
of  "incompleteness,  uncertainty,  indcfiniteness  and  want  of 
uniformity,  and  because  it  departs  from  the  principle  of  com- 
pensation for  actual  loss."  Thus,  in  Romaine  v.  Van  Allen,''^ 
the  action  was  brought  seven  months  after  the  conversion,  and 
the  stock  converted  in  that  case  rose  in  value  from  $3,937.50, 
at  the  time  of  the  conversion,  to  $5,962.50  at  the  beginning  of 

"Opinion  of  Duer,  J.,  in  Suydam  v.  Jenkins,  3  Sandf.,  614.  ^ 

"42  N.  H.,  424.     See,  also,  Frothingham  v.  Moorse,  45  N.  H.,  545. 
"  26  N.  Y.,  309. 


TROYER  A:N"D  CONVERSION.  641 


Argument  for  the  Fixed  Rule. 


the  trial,  and  before  the  trial  was  completed,  (which  was  a 
protracted  oue  before  a  referee,)  it  rose  to  the  value  of  $8,175, 
and  the  difference  in  the  amount  of  damages  under  the  differ- 
ent rules,  was  owing  largely  to  the  fortuitous  circumstances  of 
delay  in  court,  and  the  protracted  trial.     It  was  insisted  that 
this  was  an  insurmountable  objection  to  the  rule,  as  it  failed  to 
be  certain  and  uniform  as  a  measure  of  damages;  that  a  delay 
in  the  trial,  which  would  probably  occur  where  the  courts  were 
pressed  with  a  large  number  of  cases,  might  thereby  give  the 
plaintiff  an  advantage  not  enjoyed  where  the  suit  should  be 
brought  in  a  court  where  there  was  little  business  and  cases 
were  promptly  disposed  of,  and  that  therefore  the  rule  would 
not  operate  alike  under  all  circumstances;  that  it  does  not  fur- 
nish a  measure  strictly  compensatory,  but  gives  the  plaintiff 
the  advantage  of  contingent  and  speculative  profits,  without 
any  hazard  of  loss;  that  it  would  amount  to  a  lottery,  by  allow- 
ing the  amount  of  damages  to  be  doubled  or  trebled  by  the 
accident  of  a  suit,  to  enforce  the  claim,  being  brought  in  a 
court  where  great  delays  in  the  determination  of  cases  were 
unavoidable,  or  on  the  other  hand  divided  and  decimated  by 
the  circumstance  of  a  venue  in  a  court  where  the  case  could 
be  promptly  decided. 

§  809.     Again  it  is  maintained,  that  the  fluctuating  rule 
M'onld  work  injustice  in  the  case  of  property,  which  from  its 
nature  must  be  consumed  within  a  limited  period,  or  destroyed 
or  its  value  greatly  deteriorated  by  the  delay.     For  instance, 
in  the  case  of  Page  v.  Fowler^  supra,  a  hay  crop  was  wrong- 
fully converted  in  May,  1863,  and  the  action  therefor  was  not 
brought  until  18G9.     Here,  the  plaintiff,  under  the  fluctuating 
rule,  without  limit  as  to  time,  w^ould  be  allowed  tlie  liigliest 
value  of  the  hay  for  the  six  years;  but  the  hay  if  kept  during 
this  long  period,  would  greatly  deteriorate  in  value,  if  not 
be  rendered,  under  ordinary  circumstances,  entirely  worthless; 
yet  under  the  unlimited  rule,  the  plaintiff  would  be  allowed 
41 


642  THE  LAW  OF  DAMAGES. 

Argument  for  the  Fixed  Kule. 

its  liigliest  market  value  at  any  intermediate  period,  and  it  is 
maintained  that  it  is  unjust  and  inequitable,  that  tlie  plaintiff 
should  have  the  benefit  of  a  rise  in  value  wliich  he  never 
contemplated  and  which  it  is  morally  certain  he  never  could 
have  enjoyed  had  the  property  remained  in  his  possession,  and 
that  even  the  qualification  of  the  rule,  that  the  suit  must  be 
brought  within  a  reasonable  time,  is  a  grave  objection  to  it  on 
account  of  the  difficulty  of  fixing  on  what  is  a  reasonable  time 
in  such  cases."" 

It  is  further  objected  to  the  rule,  that  it  departs  from  the 
analogy  of  the  general  principle  of  indemnity,  by  which  inter- 
est on  a  debt  from  the  time  it  becomes  due,  or  on  the  value  of 
the  property  wrongfully  taken  or  withheld,  is  allowed  from 
the  time  of  the  taking  or  conversion,  such  interest  being 
generally  allowed  as  a  legal  right  in  this  country  as  an  element 
of  damages,  and  substitutes  therefor  "the  chance  of  winning 
a  prize."" 

§  810.  It  is  further  objected,  that  the  conversion  may  have 
been  purely  technical,  the  result  of  mere  misapprehension  of 
the  rights  of  the  parties,  and  an  act  of  perfect  good  faith.  Thus, 
in  Scott  V.  Rogers^  the  plaintiff  residing  in  Cleveland,  Ohio, 
had  wheat  in  store  in  Buffalo  on  the  12th  day  of  July,  1853, 
and  telegraphed  to  the  defendants  at  Buffalo  to  sell  the  same 
on  that  day  for  $1.08,  per  bushel,  and  that  if  it  was  not  sold 
on  that  day  to  ship  it  to  New  York.  The  defendants  offered 
it  for  sale  the  same  day,  and  a  party  desired  till  the  next 
morning  to  determine  on  the  purchase  at  that  price,  which  the 
defendants  assented  to,  provided  no  news  was  received  in  the 
meantime  affecting  its  value,  and  the  next  morning  the  pur- 
chaser took  the  wheat  at  the  price  stipulated.  The  case  was 
tried  by  the  court  who  found  that,  although  there  was  good  faith 
on  the  part  of  the  defendants,  the  transaction  amounted  to  a  con- 

^  Page  V.  Fowler,  39  Cal.,  412,  supra. 
*'  Note  to  Sedg.  on  Dam.,  page  596,  6  ed. 


TEOYER  AITD  CONYERSIOK  643 


Argument  Against  the  Rule  of  Fluctuating  Value  in  cases  of  Stocks. 


version  of  the  wheat  on  their  part,  and  the  court  (on  the  theory 
that  the  suit  should  have  been  brought  within  a  reasonable  time 
after  the  cause  of  action  accrued),  fixed  the  29th  of  ;N"ovem- 
ber  following  the  conversion,  as  the  time  within  which  the 
action  should  have  been  brought,  and  the  highest  value  between 
the  conversion  and  that  time  was  determined  as  the  amount 
of  damages,  and  in  the  Court  of  Appeals  tliis  decision  was 
sustained."^ 

It  is  maintained  that,  in  such  cases,  the  wrong  at  most  is  a 
merely  technical  one;  that  a  party  acting  in  good  faith  should 
not  suffer  a  penalty  to  which  only  a  willful  wrongdoer  maybe 
properly  subjected;  and  that  the  limit  of  damages  in  such  a 
case,  should  be  the  value  of  the  property  at  the  time  of  the  con- 
version; that  the  rule  of  higher  damages  in  such  cases,  is  a 
departure  from  the  principle  of  indemnity  which  should  not 
be  tolerated;  that  it  is  contrary  to  the  true  theory  on  which 
damages  are  recoverable,  namely,  that  they  should  be  confined 
to  such  losses  as  are  the  natural  and  direct  consequences  of 
the  defendant's  act,  or  such  as  both  parties  should  have 
expected  to  ensue;  and  that  the  fluctuating  value  adds  an 
unnecessary  exception  to  the  rule,  by  which  the  commence- 
ment of  the  suit  properly  limits  the  rights  of  the  contending 
parties." 

§  811.  Argument  Against  the  Rule  of  Fluctuating 
Value  in  cases  of  Stocks— Against  the  rule  of  enhanced 
value,  even  in  case  of  stocks,  whether  the  action  is  for  a  breach  of 
the  contract  to  deliver  on  a  contract  of  purchase,  where  the 
price  has  been  paid,  or  in  trover  for  their  conversion,  it  is 
claimed  that  the  fixed  rule  of  damages  is  the  one  which  gives 
complete  indemnity,  and  that  this  is  all  that  should  be  re- 
quired, that  it  rarely  happens  that  the  owner  of  stocks,  sells 
them  when  the  market  is  the  highest;  that  the  value  is  uncer- 

^  Scott  V.  Rogers,  31  N.  Y.,  676. 
«  Note  to  Sedg.  on  Dam.,  596,  6  ed. 


644  THE  LAW  OF  DAMAGES. 


Argiiment  Against  the  Rule  of  Fluctuating  Value  in  cases  of  Stock. 


tain,  and  operations  therein  specnlative,  and  the  chances  of 
profit  contingent;  and  that,  to  allow  the  plaintiff  in  case  of  a 
failure  to  deliver  to  him  according  to  the  contract,  or  in  case 
of  conversion,  which  may  be  only  technically  tortious  and  in- 
volve no  want  of  good  faith,  to  delay  his  suit  and  take  tlie 
chances  of  a  rise,  and  if  perchance  it  does  occur,  to  claim  such 
advance  price  as  damages,  is  unjust  and  inequitable  and  at 
variance  with  the  general  principles  of  the  law  of  damages,  as 
only  contemplating  compensation  to  the  party  injured. 

It  is  further  claimed  that  the  plaintiff,  under  the  rule  of 
fluctuating  value,  "is  in  a  position  incomparably  superior  to 
that  of  which  he  has  been  deprived;"  that  in  speculations  in 
stocks,  whereby-  the  defendant  contracts  to  "carry  stocks" 
that  are  purchased,  and  hold  them  subject  to  the  i)laintiff 's 
order,  on  a  promise  by  the  plaintiff  to  keep  deposited  with 
the  defendant  a  stipulated  percentage  of  the  par  value  of  the 
same  called  a  "margin,"  and  he  converts  them,  he  relieves 
the  plaintiff,  under  the  fluctuating  rule,  from  the  risk  of  a 
decline  and  the  necessity  of  supplying  "margins,"  and  that 
entire  justice  is  not  done,  even  by  the  limitation  of  the  in- 
creased value  of  the  stocks  to  a  reasonable  time  in  which  the 
suit  should  be  brought  and  prosecuted  with  vigor  to  flnal 
judgment.  This  limitation  is  also  objected  to,  as  inadequate 
to  protect  the  defendant  and  secure  justice,  on  the  ground 
that  there  is  no  standard  or  absolute  criterion  as  to  what  is  a 
reasonable  time,  and  that  this  limitation  is  therefore  unsatis- 
factory; that  the  court  can  lay  down  no  intelligent  rule  on 
the  subject,  and  that  a  jury  is  not  competent  to  deal  with  it. 

To  the  objection  to  the  fixed  rule,  that  it  permits  a 
wrongdoer  to  use  the  property  of  another  for  his  own  advant- 
age— to  speculate  with,  and  appropriate  to  his  own  use  the 
profits  that  should  go  to  the  owner — the  reply  is  made  that 
as  a  conversion  does  not  change  the  title  to  the  property,  the 
■olaiutiff  may,  by  a  demand  of  his  property,  fix  the  time  of 


TEOYEE,  AND  CONYEKSIOK.  645 


Argument  for  the  Rule  of  Highest  Value. 


the  conversion;  that  if  the  property  remains  in  the  possession 
of  the  defendant  he  may  demand  it,  and  if  it  is  not  delivered 
commence  his  action  the  same  day,  and  regard  that  as  the  day 
of  tlie  conversion,  and  in  this  way  recover  the  value  of  the 
property  on  the  day  the  action  was  commenced,  with  interest 
thereafter;  and  this,  altliough  there  may  have  been  an  actual 
conversion  of  the  property  by  the  defendant  long  prior  to  the 
time  of  the  demand.'' 

§  812.  Argument  for  the  Rule  of  Highest  Value.— 
In  support  of  the  rule  of  the  highest  value  between  the  con- 
version and  the  commencement  of  the  suit,  or  the  trial,  (as 
lield  in  some  cases,)  the  following  arguments  are  used  by  its 
advocates: 

1.  The  title  of  the  property  remaining  in  the  plaintiff,  in 
case  of  a  conversion  he  should  be  entitled  to  the  advance 
price,  especially  where  the  defendant  has  received  the  increase, 
for  the  reason,  among  others,  that  if  the  tort  was  waived  and 
a  suit  brought  for  the  money  received  on  a  sale  of  the  prop- 
erty by  the  defendant,  tlie  plaintiff  would  be  entitled  to  that 
amount. 

2.  The  defendant,  being  a  wrongdoer,  should  not  be  allowed 
to  enjoy  any  benefits  from  his  wrongful  act  of  conversion;  that 
he  should  not  profit  by  the  wrong;  that  he,  at  any  time,  whether 
the  property  be  chattels  or  stocks,  could  restore  the  same,  or 
tender  the  proceeds  of  the  same,  or  the  highest  value  to  the 
time  of  tender,  and  thus  avoid  the  hazard  of  any  advance  in 
the  value  of  the  same,  subsequently;  that  it  devolves,  rather 
on  the  wrongdoer  than  on  the  owner,  who  is  the  innocent 
party,  to  take  the  necessary  steps  to  protect  himself  from  the 
hazards  of  an  increase  in  the  value  of  the  property;  that  not 
unfrequently  the  time  of  the  technical  conversion,  may  be 
unknown  to  the  owner,  and  before  he  obtains  the  knowledge, 
the  property,  especially  if  stocks,  which  are  generally  more 

«  Dissenting  opinion  of  Marion,  J.,  in  Scott  v.  Rogers,  31  N.  Y.,  676. 


646  THE  LAW  OF  DAMAGES. 

Ai-gument  for  the  Rule  of  Highest  Value. 


fluctuating  in  value  than  other  property,  may  have  greatly 
increased  in  value,  and  the  owner  may  in  the  meantime  have 
been  deprived  of  the  opportunity  of  replacing  the  same. 
And  to  the  claim  that  the  time  of  the  conversion,  and  the 
value,  might  be  fixed  by  a  demand,  it  is  replied  that,  if  at  the 
time  of  the  sale  by  the  defendant,  in  cases  of  a  sale,  it  was  at 
a  much  higher  value  and  he  thereby  has  profited,  the  owner 
and  party  wronged  should  enjoy  the  benefit  of  it. 

It  is  further  claimed  that  the  qualification  of  the  rule,  which 
requires  the  suit  to  be  brought  within  a  reasonable  time  and 
prosecuted  with  reasonable  vigor,  is  one  which  protects  the 
wrongdoer  from  all  unreasonable  advantage  by  the  owner,  and 
from  any  studied  delay  on  his  part  for  the  purpose  of  taking 
advantage  of  the  highest  price  that  might  otherwise  extend 
over  a  period  limited  only  by  the  statute  of  limitations;  that 
the  question  of  a  reasonable  time,  whether  a  question  of  law 
or  of  fact,  is  one  frequently  presented  in  relation  to  other 
matters  in  controversy,  and  is  no  more  indefinite  or  uncertain 
than  many  other  questions  of  law  or  of  fact,  such  as  the  ques- 
tion of  negligence,  fraud  or  intent,  which  must  generally  be 
determined  from  all  the  circumstances  of  the  case,  and  which 
are  not  unfrequently,  as  in  the  case  of  negligence,  determined 
by  the  court,  as  a  matter  of  law,  from  undisputed  or  conceded 
facts.  It  is  still  farther  claimed  that  the  rule  of  value  at  the 
time  of  the  conversion  was  never  the  limit  of  damages,  but 
that  in  many  cases  the  plaintiff  has  been  allowed,  under  special 
circumstances,  such  consequential  damages  as  directly  flowed 
from  the  conversion,  as  we  have  already  had  reason  to  notice." 

The  fluctuating  rule  of  damages  is  held  to  have  still  greater 
force  in  case  of  stocks  converted  than  other  property,  and  this 
enlarged  rule  of  damages  has  been  adopted  in  some  states  in 
case  of  converted  stocks,  on  account  of  their  fluctuating  value, 
when  the  more  restricted  rule  is  applied  to  the  case  of  ordi- 
nary chattels,  as  we  have  observed  in  Pennsylvania." 

3  See,  §  797.  *  See,  §  800. 


TEOVER  AND  CONYEESION.  647 

Distinction  between  Stocks  and  other  Property  Considered— Sounder  Kule,  etc. 

§813.  The  Distinction  between  Stocks  and  other 
Property  Considered. — It  is  perhaps  difficult  to  determine 
tlie  true  rule,  or  the  preponderance  of  authority  on  the  question 
of  damages  in  case  of  a  conversion,  but  it  may  be  observed  that 
the  distinction  drawn  between  stocks  and  other  property,  is 
hardly  warranted  on  principle;  for  although  stocks  are  per- 
haps more  subject  to  fluctuation  than  most  other  property,  still 
nearly  if  not  quite  all  property  is  thus  subject  to  changes  in 
value,  and  the  difference  in  this  respect  is  merely  one  of  degree, 
and  cannot  well  be  the  logical  gi'ounds  of  any  distinction  on 
this  account.  The  rule  should,  in  our  opinion,  be  one  of  uni- 
versal application,  so  far  as  regards  the  different  kinds  of  prop- 
erty. 

Considering  the  various  reasons  adduced,  and  the  principles 
controlling  in  the  various  forms  of  action  at  common  law — the 
reforms  which  have  been  made,  and  the  tendencies  of  the 
decisions  towards  uniformity  in  the  measure  of  damages  in  all 
cases,  without  regard  to  the  technical  forms  of  actions — I 
think  we  are  warranted  in  assuming,  that  the  better  rule  of 
damages  lies  between  the  two  extremes  which  we  have  pre- 
sented. 

§  814.    The  Sounder  Rule  Between  the  Extremes.— 

The  doctrine  in  New  York,  in  Suydam.  v.  Jenkins,  supra,"" 
and  in  Mississippi,  in  Whitfield  v.  Whitfield,  sujpra^  may 
approximate  nearer  to  the  sounder  rule,  under  all  the  circum- 
stances, and  the  measure  of  damages  therein  indicated  would 
be  freer  from  many  of  the  objections  which  we  have  noticed, 
than  either  of  the  extreme  rules  we  have  been  considering; 
and  this  conclusion,  it  is  believed,  is  in  accord  with  the  Eng- 
lish decisions.'  Thus  it  is  held,  in  England,  that  the  jury  are 
not  bound  to  find  the  value  of  the  property  at  the  time  of  the 


s3Sandf.,614. 

6  40  Miss.,  352;  44  Id.,  254. 

1  France  v.  Gaudet,  6  Q.  B.  L.  R.,  199. 


648  THE  LAW  OF  DAMAGES. 

Where  Property  is  Returned— Mitigation. 

conversion,  but  may  in  their  discretion  find  its  value  at  a  sub- 
sequent time.' 

§  815.  Where  Property  is  Returned. — If  the  property 
has  been  returned,  the  owner  may  maintain  the  action  for  an 
injury  to  the  chattel,  and  the  value  of  its  use  during  the  time 
he  was  deprived  of  the  same  by  the  conversion." 

§  816.  Mitigation. — Where  the  defendant  has  a  lien  on 
the  projierty  for  a  certain  amount,  as  where  it  is  pledged,  in 
an  action  by  the  owner  for  a  conversion,  tlie  amount  of  the 
lien  may  be  deducted  from  the  value  of  the  property  in  assess- 
ing the  damages.'" 

In  trover  for  a  note  or  other  chose  in  action,  the  damages 
2XQ  jpima  facie  the  amount  due  thereon."  And,  generally, 
matters  in  mitigation  in  trespass,  may  be  shown  in  trover. "* 

8  Greening  v.  Wilkinson,  1  C.  &  P.,  625.  For  the  English  rule  in  special 
cases,  see  Cook  v.  Hartle.  8  C.  &  P.,  568;  Whitehouse  v.  Atkinson,  3  C.  & 
P.,  344,  cited,  2  Greenleaf,  §  649,  note  7,  7th  ed.  See,  also,  Barrow  v. 
Arnaud,  8  Q.  B.,  595.  "The  jury  may  (rive  the  value  at  the  time  of  the  con- 
version, or  at  any  subsequent  time,  at  their  discretion,  because  the  plaintiff 
might  have  had  a  good  opportunity  of  selling  the  goods  if  they  had  not  been 
detained."  Greening  v.  Wilkinson,  1  C.  &  P.,  625.  See,  also,  Mayne  on 
Dam.,  286,  287,  288. 

9  Greenfield  Bank  v.  Leavitt,  17  Pick.,  1;  Curtis  v.  Ward,  20  Conn.,  204; 
Ewing  V.  Blount,  20  Ala.,  694;  Sparks  v.  Purdy,  11  Mo.,  219;  Hunt  v.  Has- 
kell, 24  Me.,  339;  Angier  v.  Taunton  Paper  Manu.  Co.,  1  Gray,  621. 

'°  Greene  v.  Farmer,  4  Burr,  2214,  et  seq. ;  Chamberlain  v.  Shaw,  18  Pick., 
283;  Fowlerv.  Gillman,  13Met.,  267;  Johnson  v.  Stear,  15  C.  B.  (N.  S.),  330; 
33  L.  J.  (N.  S.),  C.  P.,  130.  Mr.  Bigelow,  in  his  Leading  Cases  on  Torts,  in 
discussing  the  question  of  damages  for  a  conversion,  remarks:  "  But  while  it 
is  true  that  the  measure  of  damages  in  trover  covers  the  value  of  the  prop- 
erty this  is  only  di,  prima  facie  presumption,  and  the  more  recent  cases  hold 
that  the  amount  may  be  reduced  by  the  sum  remaining  due  to  the  defendant. 
So  that  the  plaintiff"  in  fact  recovers  no  more  than  the  amount  of  the  loss." 
Citing,  Chinery  V.  Viall,  5  Hurl.  &  N.,  288;  Johnson  v.  Stear,  15  C.  B.  (N.  S.) 
330;  Briery  v.  KendaU,  17  Q.  B.,  937;  Neiler  v.  Kelly,  69  Pa.  St.,  403;  Work 
V.  Bennett,  70  Pa.  St.,  484.  See,  also,  Stoiy  on  Bailments,  §  315;  Clark  v. 
Dearborn,  103  Mass.,  335;  Whitney  v.  Beckford,  105  Mass.,  267. 

"Mercer  v.  Jones,  3  Camp.,  477. 

"  See,  ante,  §§  110,  785.  Wliere  an  officer  attached  property  of  the  debtor 
which  was  exempt  from  the  attachment,  but  the  property  was  subject  to  a 


TKOYEK  AND  CONYEESION.  649 

Pretium  Affectionis— Articles  of  Virtu. 

§817.    Pretium  Aflfectionis— Articles  of  Virtu. — In 

case  of  tlie  conversion  of  property  of  peculiar  value  to  the 
owner,  owing  to  personal  causes,  such  as  gifts  and  articles  of 
virtu,  the  qualification  of  the  general  rule  in  Whitfield  v. 
Whitfield,  supra,  and  the  doctrine  in  Suydam  v.  Jeiikins^ 
S'\ijpra,  make  sensible  provisions;  and  the  plaintiff  would  not 
be  confined  to  the  ordinary  market  value  of  the  chattle,  but 
the  jury  could  determine  under  all  the  circumstances  of  the 
case  the  amount  of  damages.  This  doctrine  would  give  the 
plaintiff  an  adequate  remedy  without  any  regard  to  exemplary 
damages,  which  have  in  some  instances  been  regarded  as  proper 
in  trover. 

Prof.  Parsons  remarks  on  this  subject:  "We  think  it  quite 
clear  however  that  this  pretium  afi^ectionis  cannot  be  recov- 
ered, unless  in  a  case  where  the  conversion  or  appropriation  by 
the  defendant  was  actually  tortious,  and  in  that  case  we  should 
be  disposed  to  hold  that  the  defendant  should  be  made  to  pay 
what  he  would  have  been  obliged  to  give  if  he  had  bought  the 
article;  or  at  least,  that  the  damages  might  be  considerably 
enlarged  in  such  a  case  on  the  principle  of  exemplary  dam- 
ages.""' 

But  the  right  to  exemplary  damages  in  trover,  has  many 
times  been  denied;  and  the  rule  that  the  defendant  "  should  be 
made  to  pay  what  he  would  have  been  obliged  to  give  if  he 
had  bought  the  article,''  where  the  conversion  or  appropria- 
tion by  the  defendant  was  "  actually  tortious,"  would  perhaps 
be  an  exception  to  the  general  rule.  But,  it  seems  to  me,  that 
the  rule  we  have  stated  would  afford  adequate  remedy  in  such 

mortgage,  and  the  attacliing  creditor  purchased  the  mortgage  and  the  prop- 
erty was  duly  sold  under  the  same  for  less  than  the  mortgage  debt,  it  was 
held,  m  an  action  for  the  conversion,  that  it  was  proper  to  show  the  applica- 
tion of  the  proceeds  of  the  sale  on  the  mortgage  claim  and  the  facts  of  the 
case,  in  mitigation  of  damages.  Cooper  v.  Newman,  45  N.  H.,  339.  See, 
also,  same  in  Smith  v.  Reeves,  33  How.  (N.  T.),  Pr.,  183. 

"2  Parsons  on  Con.,  196,  citing,  Ld.  Kaime's  Prin.  of  Eq.,  159;  Sedg.  on 
Dam.,  474;  Suydam  v.  Jenkins,  3  Sand.,  621. 


650  THE  LAW  OF  DAMAGES. 

Accession. 

cases,  and  harmonize  ■with  the  current  of  decisions,  and  pro- 
mote justice. 

The  principles  that  should  control  in  such  cases  is  ^vcll  set 
forth  bv  the  learned  Chief  Justice  Duer,  in  Siiydam  v.  Jen- 
kins,  sifj)/'a,  ns  follows:  "Inmost  cases  the  market  value  of 
the  property  is  the  best  criterion  of  its  value  to  the  owner,  but 
in  some  cases  its  value  to  the  owner  may  greatly  exceed  the 
sum  that  any  purchaser  would  be  ^villing  to  pay.  The  value 
to  the  owner  may  be  enhanced  by  personal  or  family  cimsid- 
erations,  as  in  the  case  of  family  pictures,  plate,  etc.,  and  we 
do  not  doubt  that  theJ!>rc^/<^^7^  affectionis,  instead  of  the  mar- 
ket price,  ought  then  to  be  considered  by  the  jury  or  court, 
in  estimating  the  value.''  " 

And  in  Whitfield  ?'.  Whitfield,  snj>ra,  ample  provision 
especially  is  made,  for  damages  in  such  cases,  by  leaving  it  to 
the  jury  or  court  to  determine,  under  all  the  circumstances  of 
the  case,  the  amount  of  damages.'* 

§818.  Accession. — It  is  affirmed  as  an  old  principle  of 
the  common  as  well  as  of  the  civil  law,  that  if  property  receives 
any  accession,  either  by  natural  or  artificial  means,  "as  by  the 
growth  of  vegetables,  the  pregnancy  of  animals,  the  embroidery 
of  cloth,  or  the  conversion  of  wood  or  metal  into  vessels  and 
ntensils,  the  original  owner  of  the  thing  is  entitled,  by  his 
right  of  possession,  to  the  property  under  such  a  state  of 
improvement;  but  if  the  thing  itself,  by  such  operation  was 
changed  into  a  difierent  species,  as  by  making  wine,  oil,  or 
bread,  out  of  another's  grapes,  olives,  or  wheat,  it  belongs  to 

"3  The  measure  of  damages  for  the  conversion  of  plates  for  printing  labels 
for  advertisements,  of  great  value  to  the  owner  and  of  trifling  value  to  others, 
•was  held  to  be  the  value  to  the  owner.  Stickney  v.  Allen,  10  Gray  (Mass.), 
362. 

w  Whitfield  V.  Whitfield,  40  Miss.,  352;  44  Miss.,  254;  BickeU  v.  Colton, 
41  Miss.,  oGS;  ante,  §  814. 


TEOYEE  AXD  COXYEESIOX.  651 

Accession. 

the  new  operator  who  was  to  make  satisfection  to  the  former 
proprietor  for  the  materials  which  he  had  so  converted.'"* 

The  Court  of  Appeals  of  2s  ew  York  has  gone  still  farther, 
and  held,  after  a  verj  fall  consideration  of  the  question,  that 
where  the  taking  or  conversion  was  willfull  v  wrong,  the  wrong- 
doer can  acquire  no  title  to  the  property  bj  any  change  what- 
soever, made  by  him  or  others,  provided  the  article  wa*  made 
from  the  orijnnal  material  converted,  as  where  com  is  made 
into  whisky.  Justice  Haggles,  in  delivering  the  oj>inion  of  a 
majority  of  the  court  in  SiUhury  v.  JfcCoon,  said:  "So  long  as 
property  wrongfully  taken  retains  its  original  form  and  sub- 
stance, or  may  be  reduced  to  its  original  materials,  it  belong, 
according  to  the  admitted  principles  of  the  common  law,  to 
the  original  owner,  without  reference  to  the  degree  of  improve- 
ment or  the  additional  value  given  to  it  by  the  labor  of  the 
wrongdoer,  Xay  more,  this  rule  holds  good,  against  an  inno- 
cent purchaser  from  the  wrongdoer,  although  its  value  be 
increased  an  hundred  fold  by  the  labor  of  the  purchaser. 
This  is  a  necessary  consequence  of  the  continuance  of  the 
original  ownership."" 

The  qualification  usually  made,  based  on  the  extent  of  the 
chano^  in  the  original  material,  was  held  to  be  unfounded  in 
principle  and  that,  in  case  of  a  wrongful  conversion,  a  recov- 
ery could  be  had,  if  the  real  identity  of  the  thing  could  be 
traced  by  evidence,  although  change^l  into  a  different  species. 

13  2  Black.  Com.,  ¥A:  Belts  r.  Lee.  5  Johns.,  ?^t5 :  Curtis  v.  Groat,  6  Johns., 
168;  Baboock  v.  GilL  10  Johns.,  287.  See,  also.  Weymoath  t.  Chicago  d:  X. 
W.  E.  Co..  17  Wis.,  .>yj;  Farwell  v.  Price,  y)  Mo..  5*7.  where  the  ralne  of 
flour,  wrongfaUy  converted  by  a  factor  on  its  way  to  a  distant  market,  was 
held  to  be  its  value  at  the  place  of  destmahnn. 

>fi  3  X.  Y.,  379;  overroling'  two  prerioos  decisions  in  tie  same  case,  in  6 
Hm..  42-5;  and  4  Denio.,  3:32;  Rice  v.  HoUenbeck,  19  Barb..  6^4:  Walter  t. 
Wetmore.  1  E.  D.  S..  7.  See,  also,  dissenting'  opinion  of  Ruggles,  J.,  in 
Brown  T.  Sax.  7  Cow.,  95.  where  it  is  suggested  that  a  distinction  should  be 
made  between  a  case  where  the  original  taking  was  willfally  tortious,  and 
a  case  where  a  i>erson  obtains  lawful  possession,  but  subsequently  sells  the 
property  without  the  consent  of  the  owner. 


652  THE  LAW  OF  DAMAGES. 

Accession. 

But  the  doctrine  of  Silshury  v.  McCoon^  has  been  questioned 
in  several  cases.'^ 

The  rule  in  the  above  case  seems  eminently  proper.  There 
should  certainly  be  a  distinction  between  a  case  of  mere  tech- 
nical conversion  where,  perhaps,  the  defendant  acts  in  good 
faith,  and  that  of  a  willful  conversion  and  wrong  done  by  the 
defendant.  And  a  distinction  should  be  made  between  a  case 
where  the  value  of  an  article  is  perhaps  quadrupled  in  value, 
by  the  skill  and  labor  expended  upon  it  by  the  defendant,  in 
the  honest  belief  of  his  title  thereto,  and  without  "moral 
fault,"  and  a  case  of  a  like  increase  where  there  was  a  willful 
and  intentional  trespass  or  conversion  of  the  article,  with  full 
knowledge  of  the  rights  of  the  plaintiif.'' 

819.  The  ordinary  rule  would  seem  obnoxious  to  the 
objection,  that  if  the  wrongdoer  only  made  such  changes  in 
the  original  material  as  not  to  impair  its  identity,  as  by  ex- 
pending his  labor  in  embroidering  cloth,  or  manufacturing 
timber  into  machinery,  the  owner  of  the  original  material  thus 
improved  and  enhanced,  perhaps  to  ten  times  its  original 
value,  may  recover  for  its  increased  value,  but  if  his  wheat  is 
made  into  bread,  or  his  corn  into  whiskey,  he  cannot  recover 
the  value  of  his  property  thus  changed  and  enhanced,  because 
it  cannot  be  identified. 

This  distinction,  it  seems,  was  based  upon  the  difficulty  or 
impossibility  of  detecting  or  discovering  the  original  article. 
But  what  distinction  exists  in  principle  as  to  the  measure  of 
damages?     It  would  appear  to  be  a  mere  question  of  proof. 

Again,  we  have  here,  under  the  distinction  referred  to,  the 
anomalous  fact  that,  by  a  wrong  done  to  another  in  the  con- 
version of  his  property  and  the  improvement  of  the  same  by 

'7  Brown  v.  Sax.  7  Cow.,  95,  per  Sunderland,  J.;  Benjamin  v.  Benjamin, 
15  Conn.,  347.  See,  also,  Betts  v.  Lee,  5  Johns.,  349;  Curtis  v.  Groab,  6  Johns., 
168;  Martin  v.  Porter,  5  M.  &  W.,  351;  Wood  v.  Morewood,  3  Q.  B.,  440; 
Tear  Book,  5  H.,  7  fol.,  15. 

'8  This  distinction  was  made  by  the  Supreme  Court  of  Michigan,  in  a 
recent  case.    Wetherbee  v.  Green,  22  Mich.,  311. 


TKOYEE  AND  CONYERSION.  653 

Accession. 

the  wrongdoer,  the  owner  maj  recover  the  property  in  replevin 
thus  improved,  or  its  vahie  in  trover  thus  enhanced,  if  it  is 
not  so  far  changed  as  to  lose  its  identity;  but  if  the  wrongdoer 
shall,  by  greater  labor  and  expense,  improve  its  value  even  ten 
times  more,  provided  he  make  such  changes  as  prevents  the 
identification  of  the  original  by  ordinary  inspection,  or  changes 
its  nature  or  character  sufficiently,  as  by  making  grapes  into 
wine,  the  owner  of  the  original  article  can  only  recover  the 
value  of  the  unimproved  orignal  article.  If  the  owner  is  to  be 
allowed  the  benefit  of  accession  to  the  value  of  his  property, 
it  would  appear  that  the  doctrine  in  Silshury  v.  McCoon  was 
the  soundest  in  principle,  and  that  he  should  be  allowed  to 
recover  for  the  increased  value  of  his  corn  even  when  converted 
into  whisky,  or  his  grapes  into  wine,  where  the  conversion  was 
willful.  But  where  the  tort  is  merely  technical,  and  the 
defendant  acts  in  good  faith,  he  should  enjoy  the  benefit  of 
this  enhanced  value,  and  the  plaintifiT  only  recover  the  value 
of  the  original  material." 

And  this  distinction  has  been  recognized  in  the  following 
cases:  Thus,  where  timber,  of  the  value  of  $25,  had,  in  good 
faith  and  in  the  exercise  of  what  was  supposed  to  be  proper 
authority,  been  converted  into  hoops  of  the  value  of  $700,  it 
was  held,  that  the  title  passed  to  the  party  who  had  in  good 
faith  expended  his  labor.^"  So,  where  the  action  was  in  trover 
for  the  value  of  coal,  and  it  appeared  that  the  coal  was  dug  by 
mistake,  it  was  held  that  the  plaintiff  could  only  recover  the 
value  of  the  coal  before  it  was  mined,  and  such  other  damage 
to  the  lands  as  the  mining  may  have  caused.''' 

'9  2  Parsons  on  Con.,  475;  Hyde  v.  Cookson,  21  Barb.,  92,  where  the  dis- 
tinction was  made  between  a  willful  and  a  mere  unintentional  wrongdoer, 
in  relation  to  accession. 

=°  Wetherbee  v.  Green,  22  Mich.,  311.  See,  also,  Weymouth  v.  Noiih- 
westem  R.  Co.,  17  Wis.,  550;  Dresser  Man.  Co.  v.  Waterson.  3  Met.,  9. 

"  Forsyth  v.  Wells.  41  Pa.  St.,  291.  See,  also,  Kier  v.  Peterson,  41  Pa. 
St.,  357;'Moody  v.  Whitney,  38  Me..  174;  Chipman  v.  Hibbard,  6  Cal.,  162; 
Wliitbeck  v.  N.  Y.  Cent.  R.  Co.,  36  Barb.,  644;  Coxe  v.  England,  65  Pa.  St., 
212;  Young  v.  Lloyd,  65  Id.,  199. 


654  THE  LAW  OF  DAMAGES. 

Confusion. 

§  820.  Confusion. — Substantially  the  same  rule  sliould 
prevail  in  case  of  the  intermixing  or  confusion  of  chattels. 
On  this  subject  Blackstone  says:  "If  the  intermixture  be  by 
consent,  I  apprehend  that  in  both  laws  (common  and  civil)  the 
proprietors  have  an  interest  in  common,  in  proportion  to  their 
respective  shares.  But,  if  one  willfully  intermixes  his  money, 
corn  or  hay,  with  that  of  another  man,  without  his  approba- 
tion or  knowledge,  or  casts  gold  in  like  manner  into  another's 
melting-pot  or  crucible,  the  civil  law,  though  it  gives  the  sole 
property  of  the  whole  to  him  who  has  not  interfered  in  the 
mixture,  yet  allows  a  satisfaction  to  the  other  for  w^hat  he  has 
so  improvidently  lost.  But  our  law,  to  guard  against  fraud, 
gives  the  entire  property,  without  any  account,  to  him  whose 
original  dominion  is  invaded,  and  endeavored  to  be  rendered 
uncertain,  without  his  own  consent."" 

The  rule  applies  only  to  wrongful  or  fraudulent  mixtures. 
But  where  there  is  an  intentional  intermingling,  and  yet  no 
wrong  intended,  as  where  a  man  mixes  two  articles  together 
supposing  both  to  be  his  own,  or  where  he  intends  to  mix,  by 
agreement,  two  parcels  belonging  to  two  different  persons,  and 
makes  a  mistake — substituting  another's  goods  for  the  one 
intended — it  would  be  unreasonable  that  he  should  lose  his 
own.  In  such  a  case,  if  the  quantity  and  quality  was  equal, 
there  would  be  no  difficulty  in  determining  the  rights;  but 
if  unequal,  it  would  be  more  difiicult.  "And  if  the  inter- 
mixture is  such  as  to  destroy  the  whole,  the  loss  should  fall 
on  him  whose  carelessness  or  folly  or  misfortune,  caused  the 
destruction  of  the  whole."  " 

But  by  the  Spanish  law,  which  obtained  formerly  in  Cali- 
fornia (1852),  the  mixture  of  gold  dust  did  not  destroy  the 
individual  ownership,  whether  the  mixture  was  by  accident  or 

"  2  Black.  Com.,  405.    See,  also,  Bac.  Ab.  Tit.  Trespass;  2  Kent's  Com., 
436,  767;  Stephenson  v.  Little,  10  Mich.,  433. 
=3  Rider  V.  Hathaway,  21  Pick.,  298;  Col  will  v.  Reeves,  2  Camp.,  575. 


TKOYER  AND  COKYERSION.  655 

Exemplary  Damages  for  Conversion. 

design.     If  inseparably  mixed,  each  owner  was  interested,  jpvo 
tanto?^ 
§  821.    Exemplary  Damages  for  Conversion.— It  was 

originally  held  that  exemplary  damages  could  not  be  recov- 
ered in  trover,  for  the  tortious  taking;"  that  if  damages,  for 
the  tortious  manner  of  the  taking  were  claimed,  the  action 
should  be  trespass.  If  a  party  elected  to  bring  trover,  it  was 
considered  that  he  waived  his  damages  for  the  tortious  taking, 
although  it  seems  Lord  Mansfield  entertained  a  contrary 
opinion.''' 

In  Pennsylvania  it  seems  to  be  now  settled,  that  in  this 
action,  the  willfullness  and  malice  of  the  party  in  taking  tlie 
converted  goods,  may  be  inquired  into,  and  where  these  are 
shown,  damages  are  not  necessarily  limited  to  mere  compen- 
sation." 

And  in  Indiana,  in  Pribble  v.  Kent,  which  was  an  action 
for  the  conversion  of  corn,  the  court  after  saying  its  value 
would  seem  to  be  the  natural  measure  of  damages,  intimates 
that  perhaps  circumstances  might  justify  the  infliction  of 
more.''* 

And  there  are  authorities  in  this  country,  as  well  as  in  Eng- 
land, in  favor  of  allowing  consequential  damages,  such  as 
losses  or  expenses  caused  by  the  conversion  or  resulting  from 
the  wrongful  act,  if  the  pleadings  warrant  it.*' 

==4  Goodenow  v.  Snyder,  3  G.  Green  (la.),  699. 

»s  Bac.  Ab.  Trover,  A.  3. 

*  Fisher  v.  Prince,  3  Burrow,  1363  (1762). 

^  Dennis  v.  Barber,  6  S.  &  R.,  420;  Berry  v.  Vantries,  12  S.  &  R.,  89; 
Neiler  V.  Kelly,  69  Pa.  St.,  403;  Backenstoss  v.  Stabler,  33  Pa.  St.,  251. 
See  also,  Baker  v.  Wheeler,  8  Wend.,  505;  Whitehouse  v.  Atkinson,  3  C.  & 
P.,  344. 

=8  Pribble  v.  Kent,  10  Ind.,  325.  See  also,  Jones  v.  Rahilly,  16  Minn.,  320, 
from  vt^bich  it  may  be  inferred  that  exemplary  damages  may  be  proper  where 
there  is  a  wrongful  taking. 

=9  2  Pars,  on  Con.,  476;  Suydam  v.  Jenkins,  3  Sandf.,  614;  Davis  v. 
Oswell,  7  C.  &  P.,  804;  Bodley  v.  Reynolds,  8  Q.  B.,  779;  10  Jur.,  310;  Rog- 
ers V.  Spence,  13  M.  &  W.,  571;  Shotwell  v.  Wendover,  1  Johns.,  65.  But 
see  Brizsee  v.  Maybee,  21  Wend.,  144. 


656  THE  LAW  OF  DAMAGES. 

Where  Interest  is  Qualified  or  Limited— Conversion  of  Notes,  etc. 

§  822.    Where  the  Interest  is  Qualified  or  Limited.— 

"Where  the  defendant  has  a  lien  on  the  property,  to  secure  a 
debt,  the  amount  of  the  lien  should  be  deducted  from  the 
value  of  the  property,  in  case  of  a  suit  by  the  owner  for  a 
conversion.'"  But  if  the  plaintiff  has  a  lien,  and  is  responsible 
over  to  a  third  party,  or  if  the  defendant  is  not  entitled  to  the 
balance  of  the  value  of  the  propert}^  subject  to  the  lien,  the 
plaintiff  is  entitled  to  recover  the  w^iole  value.'" 

If  the  plaintiff  has  only  a  lien  on  the  property,  and  the 
defendant  is  the  owner  subject  only  to  the  lien,  the  plaintiff 
should  only  recover  the  amount  of  his  claim;  but  as  against 
a  stranger,  if  he  had  possession  or  the  legal  title  for  the  pur- 
poses of  his  lien,  as  where  he  has  a  chattel  mortgage  on  the 
same,  he  should  recover  its  full  value.'" 

§  823.    Conversion  of  Notes  or  other  Choses  in  Action. 

— The  damages  for  the  conversion  of  a  note  or  other  chose  in 
action,  would  be  the  same  as  in  trespass,  viz:  the  amount 
frhna  facie  due  on  its  face." 

Where  the  holder  of  a  promissory  note,  received  as  collat- 
eral security  therefor  from  the  maker  a  bank  certificate  of 
deposit,  which,  without  the  consent  of  the  maker,  he  surren- 
dered to  the  parties  who  executed  it,  and  received  from  them 

3"  Green  V.  Farmer.  4  Burr.,  2214;  Chamberlain  v.  Shaw,  18  Pick.,  283; 
Fowler  v.  Gillman,  13  Met.,  267;  NeUer  v.  Kelly,  69  Pa.  St.,  403;  Outcault 
V  Durling,  25  N.  J.  L.,  443. 

3'  Chamberlain  v.  Shaw,  18  Pick.,  278.  See  also,  Angier  v.  Taunton,  etc. 
Co.,  1  Gray,  621;  Hyde  v.  Cookson,  21  Baxb.,  92;  2  Gr.  Ev.,  §  649.  See 
also,  ante,  §  364. 

32  As  to  when  be  is  limited  in  the  recovery  to  the  amount  of  his  claim,  see 
Hayes  v.  Riddle,  I  Sandf.,  248;  Ingersol  v.  VanBokelin,  7  Cow.,  670;  Spoor 
V.  Holland,  8  Wend.,  445;  Lloyd  v.  Godwin,  12  Smedes  &  M.,  223;  Strong 
V.  Strong,  6  Ala.,  345.  As  to  the  right  to  recover  the  whole  amount  against 
a  stranger,  see  White  v.  Webb,  15  Conn.,  302;  Lyle  v.  Barker,  5  Binney, 
457;  Schley  v  Lyon,  6  Geo.,  530. 

33  Mencer  v  Jones,  3  Camp.,  477;  Latham  v.  Brown,  16  la.,  118;  Mayne 
on  Dam.,  210.  But  the  defendant  may  show  that  the  same  or  any  part  of 
the  amount  has  been  paid,  or  that  the  obligation  is  worth  less  than  its  face, 
Id.     See  also,  ante,  §  228;  Booth  v.  Powers,  56  N.  Y.,  22. 


TKOYER  AND  CONYERSION'.  657 

Conversion  of  Notes  and  other  Choses  in  Action. 

instead,  their  promissory  note  and  a  mortgage  to  secure  the 
same;  in  an  action  on  the  original  note  against  the  maker  it 
was  held,  that  the  action  of  the  holder  in  surrendering  with- 
out the  consent  of  the  maker,  the  certificate  of  deposit  given 
by  the  latter  as  collateral,  and  the  taking  instead  thereof  the 
note  of  the  maker  of  such  certificate,  amounted  to  a  conver- 
sion of  the  collateral  by  the  holder,  and  that  he  should  account 
to  the  maker  for  the  full  nominal  amount  thereof,  although  it 
was  shown  that  the  banker  executing  the  certificate  of  deposit, 
had  suspended  payment  at  the  time  of  the  receipt  thereof.'* 

So,  where  the  defendant  purchased  and  collected  a  promis- 
sory note  with  notice  of  the  plaintiff's  right  thereto,  it  was 
held,  that  the  defendant  was  guilty  of  a  conversion  thereof, 
and  liable  for  the  amount  collected  thereon.'* 

34  Greenwald  v.  Metcalf,  Graham  &  Co.,  28  la.,  363. 

35  Allison  &  Crane  v.  King,  25  la.,  56.  See  also,  Alsager  v.  Close,  10  M. 
&  W.,  576;  McLeod  v.  McGhin,  2  M.  &  G.,  326;  Mercer  v.  Jones,  3  Camp., 
477;  Decker  v.  Mathews,  2  Kern.  (N.  Y.).  313;  Baltimore  v.  Norman,  5 
East.,  420;  Wheelwright  V.  Depeyster,  1  Johns.,  471;  Hunt  v.  Daniels,  15 
la.,  146;  Robinson  v.  Hurley,  11  la.,  410. 

42 


658  THE  LAW  OF  DAMAGES. 


General  Principles— Damages. 


OHAPTEE    XXXIT. 


EEPLEYIN. 

Section  825.  General  Principles— Damages. 

826.  Measure  of  Damages. 

828.  Time  of  Valuation. 

829.  "Where  the  Defendant  Succeeds. 

830.  Exemplary  Damages. 

831.  Detention,  and  Deterioration  in  the  hands  of  the  Plaintiff. 

832.  Property  Lost  or  Destroyed. 

833.  Special  Damages  by  the  Plaintiff. 

834.  Special  Damages  by  the  Defendant. 

835.  "Where  the  Defendant  has  Enhanced  the  Value  of  the  Prop- 

erty. 

836.  Vindictive  Damages  where  the  Proceedings  are  Malicious 

or  "Willfully  "Wrong. 

837.  Extent  of  Interest. 

838.  Mitigation. 

§  825.  General  Principles— Damages. — We  have  seen 
that  by  the  earlier  doctrines  of  the  common  law,  trespass  was 
the  proper  form  of  action  for  the  recovery  of  special  damages 
for  the  tortious  taking  of  goods,  and  that  in  trover  for  the 
value  of  goods  converted,  such  damages  could  not  be  recovered. 
The  action  of  replevin  is  now  generally  used  for  the  purpose 
Dot  only  of  recovering  specific  personal  property,  wrongfully 
taken  or  detained,  but  damages  for  the  unlawful  taking  or 
detention  and  the  value  of  the  goods  if  they  are  not  restored 
to  the  plaintiff  on  the  -writ.    The  writ  usually  issues  to  the 


EEPLEYI]^.  659 


Measure  of  Damages. 


proper  officer  onlj  after  a  bond  has  been  given  bj  the  plaintiff 
conditioned  to  return  the  property  if  on  the  trial  the  property 
is  adjudged  to  be  returned,  and  for  the  payment  of  all  costs 
and  damages  tliat  may  be  adjudged  against  the  plaintiff  by 
reason  of  the  wron^cful  suing  out  of  the  writ. 

If  the  plaintiff  establishes  his  right  to  the  property  on  the 
trial,  and  it  is  restored  to  him  on  the  writ,  he  can  generally 
recover  damages,  only  for  the  value  of  the  use  of  the  property 
during  the  detention,  and  any  depreciation  of  its  value  while 
in  the  hands  of  the  defendant.'  But  he  cannot  recover  for  any 
depreciation  of  its  value  after  the  goods  were  restored  to  him 
by  virtue  of  the  writ,  as  he  would  then  have  absolute  control 
of  the  same,  and  could  dispose  of  it  at  any  time  and  convert 
it  into  money;  the  bond  which  he  gives  being  the  defendant's 
security  for  the  value  of  the  property,  in  case  of  the  plaintiff's 
failure  to  establish  his  right  thereto,  and  failure  to  return  the 
same.' 

§  826.  Measure  of  Damages.— If  the  plaintiff  fails  to 
recover  the  propert}^,  but  succeeds  in  the  action,  the  measure 
of  damages  is  the  same  as  in  the  action  of  trover.^  The  dam- 
ages being  the  value,  and  in  addition  to  which  damages  may 
be  given  for  the  detention  and  interest  on  the  value,  which  is 
generally  a  proper  element  of  damages  for  the  detention;  but 
this  is  not  in  all  cases  the  limit  of  damages  for  the  detention." 
In  Morgain  v.  Raynolds,"  it  was  held,  that  the  party  entitled 

'  Rowley  v.  Gibbs,  14  John.,  385;  Young  v.  Willett,  8  Bosw.  (N.  T.),486; 
Frazierv.  Fredericks,  4  Zabr.  (N.  J.),  162. 

=  Gordon  v.  Jenny,  16  Mass.,  465. 

3  See,  ante,  §  792,  et  seq. 

*■  McGavock  v.  Chamberlain,  20  111.,  219;  Walls  v.  Johnson,  16  Ind.,  374. 
See,  also,  Houghton  v.  Rock,  8  Pa.  42;  Butler  v.  Mehrling,  15  111.,  488; 
McGinnis  v.  Hart,  6  la.,  204. 

s  Morgain  v.  Raynolds,  1  Mont.  (Ter.).  163  (1870).  The  action  to  recover 
specific  personal  property  is  now  usually  provided  for  by  statute,  and  as  a 
remedy  combines  such  as  were  furnished  by  the  actions  of  detinue  and 
replevin  at  common  law. 


660  THE  LAW  OF  DAMAGES. 

Time  of  Valuation, 

to  the  property  may  recover  the  value  of  its  use,  from  the  day 
he  was  deprived  of  it,  to  the  day  of  trial,  and  that  interest  on 
its  value  during  the  period  of  detention,  was  not  the  limit  of 
damages  therefor/ 

The  allowance  of  interest  on  damages  for  torts,  as  well  as 
on  contracts,  seems  to  be  the  general  American  rule.* 

8  828.  Time  of  Valuation. — The  same  question  fre- 
quently presents  itself  in  replevin,  that  we  have  already  refer- 
red to  in  treating  of  conversion,  viz:  At  what  time  is  the 
value  of  the  property  to  be  taken?  It  may  frequently  occur  that 
the  plaintiff  cannot  recover  the  specific  property,  in  which 
case  judgment  for  its  value  is  generally,  under  the  various 
statutes,  recoverable.  So,  also,  if  the  property  has  been  deliv- 
ered to  the  plaintiff  and  the  right  to  the  same  is  determined 
in  favor  of  the  defendant,  he  may  usually  have  a  judgment 
for  its  value,  or  a  conditional  judgment  for  a  return  of  the 
property  or  its  value;  and  in  case  of  a  failure  or  the  impossi- 
bility to  recover  it,  as  where  it  has  been  destroyed,  or  sold  by 
the  plaintiff,  a  judgment  for  its  value  should  be  given.  And 
the  question  in  either  case  would  be,  at  what  time  the  prop- 
erty thus  wrongfully  withheld  should  be  valued  in  assessing 
damages. 

As  the  same  principles  should  govern  the  damages  either 
in  trover  or  replevin  in  such  cases,  the  value  at  the  time  of  the 
taking  or  the  highest  subsequent  value  to  the  time  of  bring- 
ing suit  or  the  trial  of  the  action,  according  as  the  courts  may 

s  See,  also.  Allen  v.  Fox,  51  N.  Y.,  562  (1873),  where  it  was  held  that  the 
value  of  the  use  during  the  detention  was  a  proper  item  of  damages;  Clapp 
V.  Walter,  2  Tex.,  130;  Darbey  v.  Cassaway,  2  H.  &  J.,  413;  Butler  v.  Mehr- 
ing,  15  111.,  488;  McGavock  v.  Chamberlain,  20  Id.,  219. 

^Twinamv.  Swart,4Lans.  (N.  Y.),263;  Mayberry  v.  CUffe,  7 Cald.  (Tenn.), 
401;  Woodbum  v.  Cogdal,  39  Mo.,  222;  Kurd  v.  Gallaher,  14  la..  394;  Mc- 
NaUy  V.  Shobe,  22  la.,  49;  Motte  v.  Chicago  &  N.  W.  R.  Co.,  27  la.,  22, 
wliich  was  for  the  value  of  property  lost;  Conway  v.  Flint,  5  Cal.,  327;  ante, 
§324;  Chicago,  etc.  R.  Co.  v.  Shultz,  55  lU.,  421;  Chapman  v.  Chicago,  etc., 
R.  Co.,  26  Wis.,  295;   Suydam  v.  Jenkins,  3  Sandf.,  614. 


EEPLEYIK.  661 


Where  the  Defendant  Succeeds. 


hold  in  case  of  trover,  would  undoubtedly  prevail/  Thus,  in 
Kansas,  if  the  property  cannot  be  returned,  the  measure  of 
damages,  in  analogy  to  trover,  is  the  value  of  the  property  at 
the  time  of  the  conversion;*  to  which  interest  should  be  added.' 
And  where  there  is  no  evidence  as  to  the  value,  at  least  nom- 
inal damages  should  be  allowed.'"  And  in  Texas,  in  an  action 
to  recover  property  in  replevin  or  its  value,  a  valuation  by  the 
jury,  higher  than  warranted  by  the  evidence,  with  the  view  of 
inducing  a  surrender  of  the  property,  was  sustained." 

And  in  California,  where  the  rule  of  the  highest  value,  gen- 
erally prevails,  as  we  have  seen,  the  highest  market  value 
between  the  taking  of  the  property  and  the  verdict,  was  held 
to  be  the  measure  of  damao'es.'^ 

So  in  those  states  generally,  where  the  value,  in  trover,  may 
be  estimated  at  the  highest  price  of  the  property  between  the 
conversion  and  the  commencement  of  the  suit  or  the  trial,  the 
highest  value  may  also,  under  like  circumstances,  be  recovered 
in  replevin  by  the  plaintiff  as  damages,  in  case  he  succeeds  in 
establishing  his  right  to  the  property  and  fails  to  recover  the 
same  in  specie.^^ 

§  829.  Where  the  Defendant  Succeeds.— Where  the 
defendant  succeeds  in  the  action,  he  is  entitled  to  a  return  of 


7  DeWitt  V.  Morris,  13  Wend.,  496.  But  in  a  recent  case  the  successful 
party,  in  case  a  return  could  not  be  had,  was  held  entitled  to  its  value  at  the 
time  of  trial.    New  York  G.  «fe  I.  Co.  v.  Flj-nn,  55  N.  Y.,  653. 

8  Garrett  v.  Wood,  3  Kans.,  231. 

sBarthol  v.  Fox,  13  Minn.,  501.  See,  ante,  §  826,  where  authorities  are 
cited,  showing  interest  is  generally  allowed  in  such  cases. 

'°  Phenix  v.  Clark,  2  Gibbs  (Mich.),  327.  And  if  there  is  no  proof  that  the 
damages  for  the  detention  are  more  or  less  than  the  interest,  the  presump- 
tion is  that  the  damages  are  the  interest  during  the  period  of  detention. 
New  York  G.  I.  Co.  y.  Flynn,  supra. 

"  Cochran  v.  Winbum,  13  Tex.,  143. 

«  Tully  V.  Harloe,  35  Cal.,  302.  But  see,  ante,  §  246j  Page  v.  Fowler,  39 
Cal.,  412. 

'3  See,  ante,  Chap.  33. 


662  THE  LAW  OF  DAMAGES. 

Exemplary  Damages— Detention  and  Deterioration. 

the  property  according  to  the  condition  of  the  plaintiff's  bond; 
and  in  case  of  a  failure  to  return  the  same  to  the  defendant 
he  is  entitled  to  the  value  of  the  property  with  damages  for 
the  detention,  besides  interest  on  the  same;''  and  generally  to 
exemplary  damages,  as  in  case  of  a  conversion,  where  the  tak- 
ing was  willfully  wrong,  or  at  least  where  it  was  accompanied 
by  circumstances  of  aggravation."  Thus,  if  the  property  has 
increased  in  value  since  the  seizure,  and  remains  at  the  time 
of  the  trial  at  a  higher  point  than  when  seized,  this  higher 
value  must  be  allowed  the  defendant  if  he  obtains  a  judgment 
for  the  same  and  the  property  is  not  returned;  but  in  Ten- 
nessee, if  the  increase  is  temporarj'-,  it  is  left  for  the  jury  to 
determine  whether  to  allow  the  temporary  increase  or  not." 

§  830.  Exemplary  D.am.ages .— The  circumstances  in 
such  a  case,  of  the  taking  under  color  of  process,  might  be  quite 
as  aggravating  as  in  cases  of  trespass  de  honis  asportatisj  and 
whenever  exemplary  damages  would  be  authorized  in  trespass, 
they  should  also  be  allowed  the  defendant  under  the  same 
circumstances  of  aggravation  in  cases  of  the  wrongful  taking 
by  process  in  replevin." 

§  831.  Detention  and  Deterioration. — And  where  the 
property  wrongfully  taken  by  virtue  of  a  writ  of  replevin  is 
adjudged  to  be  returned  and  is  returned,  the  defendant  should 
recover  the  value  of  the  use  of  the  property  during  the  deten- 
tion, and  any  injury  to  or  deterioration  thereof  during  said 
time,  even  when  said  deterioration  or  decrease  in  value  is  not 
attributable  to  the  fault  of  the  plaintiff  in  the  replevin  suit." 

'3  Rowley  v.  Gibbs,  14  Jolins.,  385;  Brizsee  v.  Maybee,  21  Wend.,  144. 

''>  See,  post,  §  836,  and  authorities  cited. 

'5  Mayberry  v.  Cliffe,  7  Cold.  (Tenn.),  401.  The  same  general  principles 
should  be  applied  in  the  measure  of  damages  as  are  apphcable  when  the 
plaintiff  succeeds  in  the  suit,  but  fails  to  secure  the  specific  article. 

'* Single  V.  Schneider,  30  Wis.,  570.  The  same  general  principles  in  ref- 
erence to  exemplary  damages  should  be  here  applicable  as  in  case  of  trespass 
and  trover,  for  which  see  ante,  §  783  and  note,  and  §  821  and  note. 

'7 Gordon  v.  Jenny,  16  Mass.,  465. 


EEPLEYIN.  663 


Property  Lost  or  Destroyed— Special  Damages  by  the  Plaintiff,  etc. 

§  832.  Property  Lost  or  Destroyed.— In  an  action  on 
the  plaintiiF's  bond,  it  would  be  no  excuse  for  him,  where  he 
is  adjudged  to  return  the  property,  that  the  property  had  been 
lost  or  destroyed  by  unavoidable  accident  or  casualty,  as  the 
law  will  not  excuse  a  wrongdoer  from  responding  in  damages, 
on  the  ground  of  some  accident  by  which  he  has  lost  the  fruits 
of  his  wrongdoing.  The  maxim  lex  non  cogit  ad  impossihilia, 
would  have  no  application  in  such  a  case.'* 

In  White  V.  Van  Ilouton^"  it  was  held  under  the  provis- 
ions of  the  statute  of  Missouri,  that  where  a  suit  is  prosecuted 
to  judgment,  all  questions  of  value,  damages  and  costs,  should 
be  determined  in  the  replevin  suit,  and  that  if  the  defendant 
succeeds,  and  fails  to  have  his  damages  assessed,  he  cannot 
afterwards  recover  therefor  in  a  separate  action. 

§  833.  Special  Damages  by  the  Plaintiff.— The  plain- 
tiff may  further  recover  for  damages,  as  in  trover  gr  trespass, 
for  time  and  expenses  incurred  in  the  pursuit  of  the  property.^*" 

§  834.  Special  Damages  by  the  Defendant.— The  de- 
fendant may  also  recover  for  such  special  damages  as  he  may 
have  sustained  by  virtue  of  a  wrongful  taking  and  detention  of 
the  replevied  property  in  the  replevin  suit.  Thus,  where 
machinery  in  actual  use  was  wrongfull}''  replevied,  it  was  held 
that  the  damages  the  plaintiff  was  entitled  to  recover,  in  case  a 
return  of  the  property  was  adjudged,  might  include: 

1.     Interest  on  the  value  of  the  property. 

'2.  Compensation  for  the  general  inconvenience  and  loss 
arising  from  the  interruption  of  his  possession. 

3.  Compensation  for  the  expense,  trouble  and  delay  in 
restoring  the  property  to  its  original  condition." 

'^Suyclam  v.  Jenkins,  3  Sandf.,  614;  2  Story  on  Con.,  478;  Sedg.  on  Dam., 
499,  500. 

'9  51  Mo.,577. 

«>  Bennett  v.  Lockwood,  20  Wend.,  223.  But  see,  Morris  on  Rep.,  139. 
See,  also,  ante,  §  781,  notes;  also,  ante,  §  796,  and  notes. 

=»  Stevens  v.  Tuite,  104  Mass.,  328.  See,  also,  Stevenson  v.  Smith,  28CaI., 
102.  But  some  doubts  have  been  expressed  in  New  York  on  this  subject. 
Brizsee  v.Maybee,  21  Wend.,  144.  But  see,  McDonald  v.  North,  47  Barb.,  530. 


664:  THE  LAW  OF  DAMAGES. 


Where  the  Defendant  has  Enhanced  the  Value  of  the  Property. 


So,  in  actions  of  replevin  where  the  controversy  relates  to 
articles  of  peculiar  value,  pretium  affectlonis,  the  measure  of 
damages  on  a  failure  to  recover  the  specific  article  would  of 
course  be  the  same  as  we  have  indicated  in  treating  of  con- 
version." 

§  835.  Where  the  Defendant  has  Enhanced  the  Value 
of  the  Property.— It  is  said  that  where  a  return  of  the  prop- 
erty to  the  defendant  in  the  replevin  suit  is  adjudged,  and  the 
original  value  has  been  increased  through  the  labor  of  the 
plaintiff,  made  in  good  faith,  and  where  the  taking  was  bona 
Jlde,  the  measure  of  the  defendant's  recovery  does  not  usually 
include  the  value  of  the  property  as  increased  in  value  by 
the  plaintiff.''  But  the  general  rule  is  otherwise.  And  if  the 
property  has  been  taken  from  the  defendant  in  the  replevin 
suit,  and  he  has  been  adjudged  entitled  to  it,  the  general  rule 
is,  that  he, is  entitled  to  its  value  at  the  time  of  the  judgment 
for  the  return.'*' 

The  amount  of  damages  may  depend  on  the  question  of  the 
motives  of  the  wrongdoer,  and  the  allowance  of  the  increase  in 
value  through  his  labor,  may  depend  on  the  question  whether 
the  plaintiff  acted  willfully  wrong  in  suing  out  the  writ. 

In  replevin,  to  recover  lumber  which  was  manufactured  by 
the  defendant  from  logs  cut  from  plaintiff's  land  by  mistake, 
it  was  held  that  the  measure  of  compensation  was  the  differ- 
ence between  the  actual  value  of  the  property  as  improved, 
less  the  increase  in  value  from  the  defendant's  labor.'" 

23  See,  ante,  §  817,  and  authorities  cited. 

=4  Mann  v.  Grove,  4  Hask.  (Ten.),  403  (1870);  Holmes  v.  Godwin,  69  N. 
C,  467;  Single  v.  Schneider,  30  Wis.,  570;  24  Id.,  299;  Hungerford  v.  Red- 
ford,  29  Id.,  345;  Herdic  v.  Young,  55  Pa.  St.,  176. 

^5  Tuck  V.  Moses,  58  Me.,  461  (1870);  Mann  v.  Grove,  4  Hask.  (Tenn.),  403 
(1870);  Holmes  v.  Godwin,  69  N.  C  ,  467.  See,  also,  Mayberry  v.  Cliffe,  7 
Cold.  (Tenn.),  401,  where  it  is  held,  that  if  the  property  has  fluctuated  in 
value,  it  is  a  matter  for  the  jury. 

^  Single  V.  Schneider,  80  Wis.,  570.  See,  also,  Hungerford  v.  Redford, 
29  Wis.,  345;  Herdic  v.  Young,  55  Pa.  St.,  176.     If  the  property  can  be 


REPLEVIN.  665 


Vindictive  Damages— Extent  of  Interest. 


§  836.  Vindictive  Damages. — It  is  possible  for  the 
whole  proceeding  in  replevin,  to  be  the  instigation  of  malice 
on  the  part  of  the  plaintiff,  and  that  the  property  may  be 
taken  under  the  forms  of  law,  without  any  just  right,  and 
under  circumstances  even  of  great  aggravation. 

It  is  evident  that  in  such  cases  the  defendant  in  the  replevin 
suit  should  be  allowed  the  enhanced  value,  whatever  may  be 
the  cause  thereof,  and  that  on  general  principles,  in  the  absence 
of  statutory  provisions  on  the  subject,  he  should  recover  puni- 
tive damages,  as  in  cases  of  aggravated  trespass."  But,  it 
has  been  held  in  JSTew  York,  that  where  the  circumstances  did 
not  authorize  exemplary  damages,  the  plaintiff  could  not 
recover  for  the  value  of  the  property  and  for  its  use  besides.^" 

§  837.  Extent  of  Interest. — The  measure  of  damages  in 
this  action,  like  those  of  trover  and  trespass,  may  be  affected 
by  the  interest  of  the  plaintiff.  The  general  theory  is,  that 
a  party  should  recover  his  actual  damages;  and  if  his  interest 
is  only  a  lien  as  by  virtue  of  an  attachment,  execution,  or 
mortgage  to  secure  a  debt,  his  right  to  recover  may  properly 
be  limited  as  against  the  owner  to  the  amount  of  his  claim." 
And  if  he  has  only  a  limited  interest  of  any  kind,  such  as  a 
right  to  the  temporary  possession,  his  damages  should  ordina- 
rily be  limited  to  the  damages  sustained  by  the  interference 

identified,  and  a  delivery  can  be  had,  the  plaintiff,  if  he  succeeds,  is  enti- 
tled to  it,  vrhatever  addition  of  value  may  have  been  added  to  it  by  the 
wfongdoer.  Weymouth  v.  Chicago,  etc.,  R.  Co.,  17  Wis.,  550.  The  doctrine 
in  such  a  case  would  be  the  same  as  in  trover.  See,  ante,  §  818,  and  authori- 
ties cited. 

^  McDonald  v.  Scaife,  11  Pa.  St.,  381;  Schofield  v.  Ferreers,  46  Pa.  St.,  438; 
Single  V.  Schneider,  30  Wis.,  570;  Mayberry  v.  Cliffe,  7  Cold.  (Tenn.),  401; 
Sedg.  on  Dam.,  502. 

3°  Twinam  v.  Swart,  4  Lans.  (N.  Y.),  263.  It  seems  that  under  the 
statutes  of  Illinois  and  Indiana,  exemplary  damages  have  been  repudiated. 
Butler  V.  Mehrhng,  15  111.,  488;  Hotchkiss  v.  Jones,  4  Ind.,  260. 

3'  Hayden  v.  Anderson,  17  la.,  158;  Warner  v.  Mathews,  18  111.,  83; 
Rhodes  v.  Woods,  41  Barb.,  471;   Fitzhugh  v.  Wiman,  9  N.  Y.,  559;   Sea-' 
man  v.  Luce,  23  Barb.,  240;   Jennings  v.  Johnson,  17  Ohio,  154;  Noble  v 
Epperly,  6  Ind.,  468. 


666  THE  LAW  OF  DAMAGES. 

Mitigation. 

with  that  interest."  So,  where  the  defendant  in  the  replevin 
suit  succeeds,  ^nd  sues  on  the  replevin  bond  for  the  value  of 
the  property,  the  defendant  in  this  suit  cannot  show  in  miti- 
gation of  damages  tliat  the  right  to  the  property  was  in  him- 
self, but  he  can  show  that  the  plaintiff's  title  was  of  short 
duration,  and  was  terminated  soon  after  the  judgment  in  the 
former  suit.  But  if  the  action  is  against  a  mere  stranger,  the 
rule  would  be  different;  and  in  such  a  case  the  plaintiff  who 
holds  the  property  by  virtue  only  of  some  lien,  should  recover 
the  full  value.'* 

§  838.  Mitigation. — We  have  already  referred  to  some 
matters  in  mitigation  of  damages.  A  few  other  instances 
will  here  be  noticed : 

In  an  action  on  the  replevin  bond,  it  may  be  shown  in  miti- 
gation of  damages,  that  the  action  of  replevin  failed,  merely 
because  it  was  prematurely  brought.'"  So,  in  an  action  on  the 
bond  by  one  of  the  owners  of  the  property  held  in  common, 
the  value  of  his  interest  can  only  be  recovered."  And  where 
property  has  been  delivered  pending  the  suit,  only  nominal 
damaires  can  be  ffiven,  unless  for  the  detention  or  interest." 
So  the  defendant,  in  an  action  on  the  bond,  may  show  in  mit- 
igation of  damages,  that  since  the  taking  by  the  replevin  writ 
the  plaintiff's  interest,  in  whole  or  in  part,  has  ceased  to 
exist.'*  So  the  plaintiff  who  fails  in  the  replevin  suit  may 
show  as  a  defense,  or  at  least  in  mitigation  of  damages,  that 
the  defendant's  only  interest  in  the  property  was  by  a  levy 
imder  an  execution  which  has  been  satisfied.'^ 

33Hayden  v.  Anderson,  17  la.,  158;  Weaver  v.  Darby,  42  Barb.,  411; 
Hawley  v.  Warner,  12  la.,  42;  Cumberland  Coal  &  Iron  Co.  v.  Tilghman, 
13  Md.,  74. 

34  Fallon  V.  Manning.  35  Mo.,  271;  Frei  v.  Vogel,  40  Mo.,  149. 

33  Davis  V.  Harding,  3  Allen,  302. 

36  Bartlett  v.  Kidder,  14  Gray,  449. 

37  Conroy  v.  FUnt,  5  Cal.,  327. 

38  Tuck  V.  Moses,  58  Me.,  461  (1870). 

39  Hayden  v.  Anderson,  17  la.,  158;  Hawley  v.  Warner,  12  la.,  42;  Buck 
V.  Rhodes,  11  la.,  348. 


STATUTOKT  PROYISIOES.  667 


Private  Property  taken  for  Public  Purposes— Eminent  Domain. 


CHAPTER  XXXY. 


DAMAGES  UNDER  STATUTORY  PROYISIONS. 

Section  845.    Private   Property    Taken  for  Public  Purposes— Eminent 
Domain. 

846.  Damages. 

847.  Witnesses— Damages  for  Failure  of. 

848.  Double  and  Treble  Damages. 

849.  Statutes  Against  Setting  Fires. 

850.  Statutes  Kequiring  Bailroad  Companies  to  Pence,  etc. 

851.  Damages  under  Statutes  for  Injury  Besulting  from  the  Sale 

of  Intoxicating  Liquors. 

§  845.  Private  Property  Taken  for  Public  Pur- 
poses— Eminent  Domain. — Questions  relating  to  damages 
frequently  arise  under  the  local  statutes  of  the  various  states, 
and  in  reference  to  various  matters,  the  most  common  of 
which  are  those  where  property  is  authorized  to  be  taken  for 
public  purposes  under  the  right  of  eminent  domain. 

The  constitution  of  the  United  States  and  of  the  various 
states  of  the  Union,  provide  in  substance  that  private  prop- 
erty shall  not  be  taken  for  public  purposes  without  just  com- 
pensation. And  this  principle  in  our  American  constitutional 
jurisprudence,  is  not  only  based  upon  natural  justice  and 
equity,  but  seems  to  be  an  acknowledged  principle  among  all 
civilized  people.* 

The  taking  of  private  j)roperty  for  public  purposes,  occurs 

»  Amend.  Const.  U.  S.,  Art.  5;  Vattel  b.  1,  Ch.  20,  Sec.  244. 


668  THE  LAW  OF  DAMAGES. 

Damages. 

under  statutory  provisions,  where  it  is  taken  for  highways, 
raih'oads,  canals,  etc.,  and  public  works  generally;  which 
through  the  means,  energy,  and  public  spirit  of  our  people 
have  been  prosecuted  with  great  vigor,  as  we  have  witnessed 
during  the  last  century. 

§  846.  Damages. — The  statutes  of  the  states  generally 
make  some  jjro vision  in  reference  to  damages  in  such  cases; 
such  as  that  in  estimating  the  same  no  account  shall  be  taken 
of  the  benefits  conferred  by  the  contemplated  improvement 
for  which  the  land  is  takeu.^  The  general  rule  is,  that  the 
party  whose  land  is  taken  may  recover  the  market  value  of 
the  land  thus  taken,  and  in  the  absence  of  statutory  provis- 
ions no  allowance  should  be  made  on  account  of  the  general 
advantage  which  the  owner  enjoys  in  common  with  the  public 
generally,  by  reason  of  the  public  improvement.'  And  where 
damages  are  assessed  for  a  railroad  it  should  include  compen- 
sation for  all  actual  loss  to  which  the  owner  will  be  subject 
by  reason  of  the  proper  construction  and  operation  of  the 
road.  The  proper  mode  of  ascertaining  damages  for  a  right 
of  way  for  a  road,  across  lands,  is  to  determine  the  market 
value  of  the  premises  before  the  right  is  set  apart,  and  then 
again  immediately  after,  and  the  dijfference  will  be  the  true 
measure  of  damages.  Present  values  and  the  immediate  and 
necessary  consequences  of  parting  with  the  right  conferred, 
being  alone  proper  to  be  considered,  and  future  benefits,  abuse 
of  privilege,  and  unwillingness  of  the  owner  to  part  with  the 
right,  should  be  disregarded.  The  condition  in  which  the 
premises  will  be  left  after  the  right  of  way  is  taken,  together 
■with  the  damages  assessed,  should  be  equal  to  the  value  of 


2  Const.  Iowa,  Art.  1,  Sec.  18. 

3  Jacob  V.  City  of  Louisville,  9  Dana  (Ky.),  114;  2  Kent  Com.,  339  and 
notes;  Israel  v.  Jewett,  29  la.,  475;  Fleming  v.  The  Chicago,  etc.,  R.  Co., 
34  la.,  353. 


STATUTORY  PROVISIONS.  669 

Damages. 

the  premises  immediately  before  tlie  right  of  way  is  taken/ 
Present  depreciation  and  not  anticipated  injuries  is  the  meas- 
ure of  damages,^  although  future  exposure  to  fire  may  be  proper 
to  be  considered  by  a  jury  in  estimating  them,  as  it  would 
tend  to  reduce  the  present  value/ 

And  when  there  is  a  statute  providing  for  the  mode  of 
estimating  damages  in  such  cases,  and  prescribing  the  mode 
of  compensation,  this  is  held  to  be  exclusive  of  any  other 
remedy/  But  if  the  appropriation  is  not  authorized  by  the 
statute  it  stands  in  the  situation  of  any  other  wrong;*  and 
in  such  a  case,  where  the  act  complained  of  was  the  destruction 
of  a  building,  the  measure  of  damages,  on  general  principles 

*  Henry  v.  The  Dubuque,  etc.,  R.  Co.,  2  la.,  288;  Sater  v.  Burlington,  etc., 
R.  Co.,  1  la.,  386;  Watson  v.  The  Pittsburg,  etc.,  R.  Co.,  37  Pa.  St.,  469; 
Schuylkill  Nav.  Co.  v.  Thoburn,  7  S.  &  R.,  411;  Deaton  v.  Polk  Co.,  9  la., 
594;  Preston  v.  Dubuque,  etc.,  R.  Co.,  11  la.,  15, 

5  Wilmington,  etc.,  R.  Co.  v.  Stauffer,  60  Pa.  St.,  374, 

fi  Colville  V.  Railway,  19  Minn.,  283.  But  in  Kentucky  it  has  been  held 
that  the  plaintiff  may  recover  the  actual  value  of  the  property  to  him;  Robb 
V.  The  Maysville  T.  Co.,  3  Met.,  117.  See,  also,  Pottstown  Gas  Co.  v.  Mur- 
phy. 39  Pa.  St.,  257;  Buckwalterv.  Blacki-ock  Bridge  Co..  38  Pa.  St.,  281; 
Dearborn  v.  The  Boston,  etc..  R  Co.,  4  Foster  (N.  H.),  179;  Mt.  Washing- 
ton R.  Co. 's  Petition,  35  N.  H.,  134;  Minnesota  Cent.  R.  Co.,  v.  McNamara, 
13  Minn.,  508;  Winona,  etc.,  R.  Co.  v.  Waldron,  11  Minn.,  515;  Fleming 
V.  Chicago,  etc.,  R.  Co.,  34  la.,  353;  Deaton  v.  The  County  of  Polk,  9  la., 
594;  East  Penn.  R.  Co.  v.  HottenstiL  ■,  47  Pa.  St.,  28;  Searle  v.  The  Lacka- 
wana.etc,  R.  Co.,  33  Pa.  Si.,  57:  Patten  v.  The  Northern  Cent.  R.  Co..  33 
Pa.  St.,  426;  Dorian  v.  The  East  Brandywine,  etc.,  R.  Co.,  46  Pa.  St.,  520; 
Town  of  Lambertville  v.  Clevinger,  1  Vroom  (N  J.),  53;  Robinson  v.  Rob- 
inson, 1  Dana  (Ky.),  162;  AmsJeu  v.  Dubuque,  etc.,  R.  Co.,  28  la.,  542; 
Tingiey  v.  City  of  Providence,  8  R.  I.,  493;  Bangor  R.  Co.,  v.  McComb, 
60  Me.,  290;  Thompson  v.  The  Grand  Gulf  R.  Co.,  3  How.  (Miss.),  240; 
Bonaparte  V.  The  Camden,  etc.,  R.  Co.,  1  Bald.  (C.  C.  R.l,  205;  Stewart  v.  Ray- 
nolds  R.  Co.,  7  Smedes  &  M.  (Miss.),  568;  Rexford  v.  Knight,  11  N.  Y..  308; 
Bloodgood  V.  Mohawk,  etc.,  R.  Co.,  18  Wend.,  9;  Baker  v.  Johnson,  2  Hill., 
342;  People  v.  Hayden,  6  Hdl.,  359. 

7  Fuller  v.  Edings,  11  S.  C.  L.  R.  (Rich.),  239;  The  Little  Miami  R.  Co.,  v. 
Whitacre,  8  Ohio  St.,  590. 

8  Cortes  v.  The  City  of  Davenport,  9  la..  227;  Freeland  v.  The  City  of 
Muscatine,  9  la.,  461;  Beyer  v.  Tanner,  29  111.,  135;  Soulard  v.  St.  Louis,  36 
Mo.,  546;  Jamison  v.  Springfield,  53  Mo.,  224 


C70  THE  LAW  OF  DAMAGES. 


Witnesses— Damages  for  Failure  of. 


applicable  to  trespasses,  was  held  to  be,  not  the  expense 
of  replacing  a  new  building  in  the  place  of  the  old  one 
but  of  replacing  the  original  building,  and  allowance  for 
deprivation  of  the  use  of  the  property,  caused  by  the  wrong- 
ful act  of  the  defendant.'  And  where  leased  land  is  taken, 
the  landlord's  measure  of  damages  is  the  value  of  the  rent  and 
the  reversion,  and  the  tenant's  measure  of  damages  the  value 
of  the  term  subject  to  the  rent.'"  But  we  have  already  consid- 
ered this  subject  in  treating  of  injuries  to  real  property." 

§  847.  Witnesses— Damages  for  failure  of— The  stat- 
utes of  the  various  states  generally  provide  that  where  a  witness 
duly  subpcEnaed  to  attend  a  trial,  fails  so  to  do  without  a  rea- 
sonable excuse,  he  shall  forfeit  some  specified  sum,  and  in 
addition  thereto  pay  to  the  party  injured  all  such  damages  as 
he  may  sustain  by  reason  of  the  failure."  In  actions  against 
witnesses  for  damages  in  such  cases,  actual  damages  must  be 
shown.  The  law  does  not  imply  a  loss  from  the  failure  to 
attend."  He  is  responsible  for  all  losses  and  hindrances  to 
the  aggrieved  party;  and,  to  recover  substantial  damages,  it  is 
not  necessary  to  show  that  if  the  defendant  had  attended  as  a 
witness  the  plaintiff  would  have  succeeded."  The  plaintiff 
may  recover  the  costs  fruitlessly  incurred,  where  he  omits  to 
go  to  trial  on  account  of  the  absence  of  the  witness." 

So,  where  the  plaintiff  is  non-suited  by  reason  of  the  want 

9  Ibid. 

«>  Dyer  v.  Wightman.  66  Pa.  St.,  425;  Biddle  v.  Hussman,  23  Mo.,  597; 
Kingslandv.  Clark,  24  Mo.,  24. 

"  See,  ante.  %  737,  et  seq.  See,  also,  ante,  §43,  et  seq.,  where  it  is  shown  that 
damages  cannot  be  recovered  for  consequential  injuries  resulting  from  the 
constrTiction  of  railroads  and  the  taking  of  lands  therefor,  and  for  other  pur- 
poses authorized  by  law;  such  being  damnum  absque  injuria. 

« Iowa  Code  (1873),  Sec,  3675;  Wisconsin  Rev.  (1858),  Ch.  137,  Sec.  4; 
Wagner'sStatutesof  Missouri  (1872),  Vol.  2  p.  1375,  §  17;  Rev.  Code,  Miss., 
§  766;  Gen.  Stat.,  Mass.  (1860),  p.  672,  §  §  4,  5. 

'3  Conhng  v.  Coxe,  6  C.  B.,  703. 
'  u  Yeatman  v.  Dempsey,  7  C.  B.  (N.  S.),  628;  9  C.  B.  (N.  S.),  881. 

'5  Needham  v.  Fraser,  1  C.  B.,  815;  Hurd  v.  Swan,  4  Denio.,  75. 


STATUTORY  PEOYISIONS.  671 

Double  and  Treble  Damages. 

of  the  testimony  of  the  witness,  he  would  be  entitled  to  recover 
from  the  witness  his  costs  and  expenses  of  the  suit,  without 
showing  that  he  had  a  good  cause  of  action  in  the  suit.'*  The 
statutory  liability  is  only  an  affirmance  of  the  common  law  lia- 
bility in  such  cases,  except  as  to  the  penalty. 

§  848.  Double  and  Treble  Damages.— Statutes  fre- 
quently provide  for  double  or  treble  damages  in  certain  cases, 
as  in  case  of  willful  trespass,  in  cutting  timber,  and  the  like. 
The  general  principles  we  have  considered,  applicable  to  tres- 
pass quare  olausum  freg it,  v^owXdi  of  course  also  apply  in  such 
cases.  The  term  willful  implies  a  purpose  and  an  intention  of 
doing  the  wrong.  The  animus  of  the  party  in  such  cases,  is 
material  to  be  shown.  When  the  trespass  is  shown  to  be  willful 
either  the  jury  should  assess  the  increased  damages,  as  pro- 
vided by  the  statute,  or  actual  damages;  in  which  latter  case 
the  court  should  increase  the  amount  as  provided  by  the 
statute. 

Tlie  practice  in  different  states  in  such  cases  seems  to  vary 
as  to  the  mode  of  obtaining  the  enhanced  damages.  In  some 
states  the  jury  assess  only  single  damages,  which  the  court 
increases,"  whereas  in  others,  the  jury  find  the  enhanced 
damages.''  The  mode  is  perhaps,  quite  immaterial,"  but  the 
most  usual  practice  is  now  to  allow  the  jury  to  find  the 
increased  damages.''" 

It  is  evident  that  the  damages  thus  doubled  or  trebled, 
should  be  only  the  actual  and  not  exemplary  damages,  the 
purpose  of  the  statute  being  to  substitute  a  certain  sum  as  a 
penalty  for  the  wrong,  in  the  place  of  the  uncertain  one  wliich 

'«  Lane  v.  Cole,  12  Barb.,  680;  Amey  v.  Long,  9  East.,  472. 

'7  Gray  v.  James,  1  Pet.,  C.  0.  R.,  394;  Evans  v.  Hettick,  3  Wash.,  C.  C.  R., 
408;  "Wagner's  Stat.,  Mo.,  1345;  Montague  v.  Papin,  1  Mo.,  757;  Lowe  v. 
Harrison,  8  Mo.,  350;  Dreyer  v.  Myng,  23  Mo.,  434. 

'3  Welch  V.  Anthony,  16  Pa.  St.,  254. 

's>  Quinby  v.  Carter,  20  Me.,  218;  Warren  v.  Doolittle,  5  Cow.,  678. 

"  Cross  V.  The  U.  S.,  1  GaUison,  26. 


672  THE  LAW  OF  DAMAGES. 

statutes  Against  Setting  Out  Fires. 

it  is  claimed  bj  some  authorities  the  common  law  furnishes, 
bj  allowing  a  jury  in  such  cases  to  give  exemplary  or  puni- 
tive damages." 

§  849.  Statutes  Against  Setting  out  Fires.— There  are 
usually  many  other  statutory  provisions  in  the  various  states, 
prohibiting  or  requiring  certain  acts,  but  omitting  to  provide 
for  or  prescribe  damages  in  case  of  a  foilure  to  comply  with 
the  provisions  of  the  statute.  In  such  cases  the  general  prin- 
ciples of  the  law  of  damages,  which  we  have  already  considered, 
will  furnish  a  sufficient  guide. 

Thus  in  Iowa,  the  statute  provides  that:  "If  any  person 
willfully,  or  without  using  proper  caution,  set  fire  to  and  burn 
or  cause  to  be  burnt,  any  prairie  or  timber  land,  by  which  the 
property  of  another  is  injured  or  destroyed,  he  shall  be  fined 
not  exceeding  five  hundred  dollars,  or  imprisoned  in  tlie  county 
jail  not  more  than  one  year,  or  by  both  fine  and  imprison- 
ment, in  the  discretion  of  the  court.  -x-  *  *  jf  ^ny 
person  set  fire  to  or  burn,  or  cause  to  be  burned,  any  prairie 
or  timber  land  and  allow  such  fire  to  escape  from  his  control, 
between  the  first  day  of  September  in  any  year  and  the  first 
day  of  May  following,  he  shall  be  deemed  guilty  of  a  misde- 
meanor, and  upon  conviction  thereof  shall  be  punished  by 
imprisonment  in  the  county  jail  not  more  than  thirty  days,  or 
by  a  fine  not  exceeding  one  hundred  dollars." '''  In  a  recent 
case  in  that  state  it  was  held,  that  whoever  sets  out  fire  between 
the  first  day  of  September  and  the  first  of  May  following,  is 
absolutely  liable  for  all  damages  caused  by  its  escape,  regard- 
less of  the  question  of  diligence." 

*'  This  is  the  doctrine  held  in  relation  to  the  treble  damages  which  the 
court  may  give  under  the  Acts  of  Congress  for  infringements  of  patents. 
See,  ante,  §  716. 

«  Code  of  Iowa  (1873),  §  §  3889  and  3890.  See,  also,  Wagner's  Mo.  St., 
638  (1872). 

=3  Conn  V.  May,  36  la.,  241.  The  statute  of  Connecticut  provides:  "  Every 
person  who  shall  set  fire,  on  any  land,  that  shall  run  upon  the  land  of  any 


STATUTORY  PROVISIONS.  673 

statutes  Against  Setting  Out  Fires. 

On  general  principles,  where  a  person  who,  either  wi'ong- 
fullj  or  without  ordinary  care,  sets  fire  to  his  own  or  another's 
land,  he  is  responsible  for  all  the  proximate  consequences  of 
his  wrongful  or  negligent  act.  But  where  the  fire  is  lawfully 
set  out,  it  devolves  on  the  plaintiif  to  show  a  want  of  ordinary 
care." 


other  person,  shall  pay  to  the  owner  all  damages  done  by  such  fire,  to  be 
recovered  in  an  action  of  trespass.''  Conn.  Rev.  Stat.  (1866),  84,  §365; 
construed  in  Ayer  v.  Starkey,  30  Conn.,  304. 

A  statute  of  North  Carolina  provides :  "No  person  shall  set  fire  to  any 
woods,  except  it  be  his  own  property;  nor  in  that  case,  without  giving  notice 
in  writing  to  all  persons  owning  lands  adjoining  to  the  wood  lands  intended 
to  be  fired,  at  least  two  days  before  the  firing  of  such  woods,  and  also  taking 
effectual  care  to  extinguish  such  fire  before  it  shall  reach  any  vacant  or  pat- 
ented lands  near  to  or  adjoining  the  lands  so  fired."  N.  C.  Rev.  Code  (1855), 
115.  Ch.  16,  §  1.  A  person  who  willfully  fires  woods  upon  his  land  is  lial^le, 
under  this  statute,  for  injuries  caused  to  an  adjoining  owner,  unless  he  has 
given  him  the  notice  required  by  the  statute.  But  this  notice  may  be  waived  by 
the  adjoming  owner.  Robertson  v.  Kerby,  7  Jones  (N.  C.  L.).  477.  And  it 
does  not  apply  to  a  firing  of  log-heaps,  or  trash  collected  on  the  land  of  the 
party  firing  the  same,  but  only  to  woods  actually  gro^\•ing  on  his  soil .  Averitt 
V.  Murrell,  4  Jones  (N.  C.  L.),  322. 

The  statutes  of  Illinois  provide:  "If  any  person  shall  at  any  time  here- 
after, willfully  and  intentionally,  or  negligently  and  carelessly  set  on  fire,  or 
cause  to  be  set  on  fire,  any  woods,  prairies,  or  other  ground  whatsoever,  in 
the  inhabited  parts  of  tliis  state,  every  person  so  offending  shall,  on  convic- 
tion, be  fined  in  any  sum  not  less  than  five  dollars  nor  more  than  one  hun- 
dred dollars.  Provided,  that  this  section  shall  not  extend  to  any  person  who 
shall  set  on  fire  any  woods  or  prairie  adjoining  his  or  her  own  farm,  plan- 
tation, or  enclosure,  for  the  necessary  preservation  thereof  from  accident  by 
fire,  between  the  first  day  of  Mari;h  and  the  last  day  of  November,  by  giving 
to  his  or  her  neighbors  two  days'  notice  of  such  intention.  Provided  also, 
that  this  section  shall  not  be  construed  to  take  away  any  civil  remedy  which 
any  person  may  be  entitled  to,  for  any  injury  which  may  be  done  or  received 
in  consequence  of  such  firing."  2  111.  Gen.  Stat.  (1858),  402,  §  158.  Under 
this  statute  it  has  been  held,  that  the  burden  of  proving  that  the  fire  set  was 
within  the  exception  is  on  the  defendant,  and  the  general  principles  of  the 
common  law  are  recognized;  namely,  that  the  defendant  must  use  every 
reasonable  means  to  prevent  injury  to  others  from  the  fire.  Johnson  v.  Bar- 
ber, 5  Gilm.,  425;  Burton  v.  McClellan,  2  Scam.,  434. 

=4  Jordan  v.  Lasseter,  6  Jones  (N.  C.  L.),  130;  Finley  v.  I  angston,  12  Mo., 
120;  Shear.  &  Red.  on  Neg.,  §  §  329,  330. 

43 


674  THE  LAW  OF  DAMAGES. 


statutes  Requiring  Railroad  Compauies  to  Fence  their  Tracks. 


§  850.  Statutes  Requiring  Railroad  Companies  to 
Fence  their  Tracks.— A  railroad  company,  in  the  absence  of 
any  provision  in  its  charter,  or  of  positive  statutory  provisions 
on  the  sul)ject,  is  not  bound  to  fence  its  track."  But  this  is 
frequently  required  either  by  the  terms  of  the  charter  or  by 
statute."  A  statute,  requiring  railroad  companies  to  fence 
against  "cattle  horses,  sheep,  and  hogs,"  is  held  to  be  a  reme- 
dial statute  and  will  be  liberally  construed,  so  as  to  include 
"asses"  and  "mules"  in  the  term  "cattle.""  And  a  pro- 
vision of  this  kind  binds  railroad  companies  previously  char- 
tered." Such  provisions  are  intended  not  merely  for  the 
protection  of  the  owners  of  cattle  and  other  live  stock,  but  are 
in  the  nature  of  a  police  regulation  and  designed  also  to  pro- 
mote the  security  of  persons  and  property  passing  over  the 
road." 

So  under  the  provisions  of  a  statute  making  railroad  compa- 
nies liable  for  damages  to  "  live  stock  running  at  large,"  by 
reason  of  the  failure  of  the  company  to  properly  fence  the 
road,  the  company  is  liable  in  damages  for  the  killing  of  sheep 
w^hich  have  strayed  upon  the  track  owing  to  a  defective  fence 
erected  by  the  company."  But  where  the  railroad  company 
inclose  their  track  with  a  sufficient  fence,  but  a  casual  breach 
in  the  fence  occurs  without  the  knowledge  or  fault  of  the 
company,  they  will  not  be  liable  for  damages  resulting  there- 
from unless  they  have  had  a  reasonable  time  to  discover  and 
repair  such  breach,  or  a  reasonable  notice  thereof,  and  have 
failed  within  a  reasonable  time  to  repair  the  same  before  the 

'sMempliis,  etc.,  R.  Co.  v.  Orr,  43  Miss.,  279;  Gormon  v.  Pacific  R.  Co., 
26  Mo.,  441. 

»6Iowa  Code,  1873;  Wagner's  Mo.  St.,  310. 

^  Ohio,  etc.,  R.  Co.  v.  Brubaker,  47  lU.,  462;  Toledo,  etc.,  R.  Co.  v.  Cole, 
50  111.,  184. 

^  Sawyer  v.  Vermont,  etc.,  R.  Co.,  105  Mass.,  196. 

=9  JeffersonviUe,  etc.,  R.  Co.  v.  Nichols,  30  Ind.,  321. 

3oHinman  v.  Chicago,  etc.,  R.  Co.,  28  la.,  491. 


STATUTORY  PROVISIONS.  675 

Damages  for  Injury  Resulting  from  Sale  of  Intoxicating  Liquors. 

injury  occurred  in  consequence  thereof,  provided  tliej  were  not* 
owinof  to  a  want  of  due  care  on  their  part  at  the  time  of  the 
injury." 

The  absolute  neglect  of  a  railroad  company  to  fence  its 
road  as  required  by  a  statute,  would  make  it  liable  for  all 
damages  resulting  in  consequence  of  the  neglect,  either  to  the 
person  or  property  of  another."  The  measure  of  damages 
would  be  the  same  as  is  applicable  generally  in  cases  of  torts, 
that  is,  actual  compensation,  except  in  cases  where  exemplary 
damages  are  proper.  It  should  be  observed,  however,  that  by 
statute  in  such  cases  it  is  frequently  provided,  that  in  case  the 
company  fail  to  pay  damages,  caused  by  injury  to  cattle  through 
the  failure  of  the  company  to  fence  its  road,  they  may  be 
requred  to  pay  additional  damages  as  a  penalty. 

§  851.  Damages  under  Statutes  Providing  for  In- 
jury Resulting  from  the  Sale  of  Intoxicating  Liquor. — 

It  is  provided  by  statute  in  various  states,  that  a  wife,  child, 
parent,  guardian,  employer,  or  other  person,  who  shall  be 
injured  in  person,  property  or  means  of  support,  by  any  intoxi- 
cated person,  or  in  consequence  of  intoxication,  habitual  or 
otherwise,  of  any  person,  shall  have  a  right  of  action  against 
any  person  who  shall  by  selling  intoxicating  liquors,  cause  the 
intoxication  of  such  person;  and  that  such  party  may  recover 
not  only  for  the  actual  damage  thereby  sustained,  but  also 
exemplary  damages." 

3'  111.  Cent.  R.  Co.  v.  Swarengen,  47  111.,  206;  lU.  Cent.  R.  Co.  v.  Arnold, 
47  111.,  173;  Lemmon  v.  The  Chicago,  etc.,  R.  Co.,  32* la.,  151;  Aylesworth, 
V.  Chicago,  R.  1.  R.  Co.,  30  la.,  459. 

3^  Davis  V.  Burlington,  etc.,  R.  Co.,  26  la.,  549;  Indianapolis,  ete.,  R.  Co.  v. 
Warner,  35  Ind.,  515.  And  this  liability  would  exist  without  reference  to 
the  question  of  fault  or  negligence  on  the  part  of  either  party.  JefFerson- 
ville,  etc.,  R.  Co.  v.  Ross,  37  Ind.,  545,  citing  many  cases  in  that  State. 

33  Code  of  Iowa  (1873),  §  1557;  N.  Y.  Stat,  at  Large  (J.  W.  Edmonds),  Vol. 
4,  p.  54,  §  28.  but  this  contains  no  express  provision  for  exemplaiy  damages; 
Rev.  Stat.  111.  (1874),  439,  §  9;  Rev.  Stat.  Maine  (1871),  p.  304,  §  32;  Rev. 
Stat.  Ohio  (S.  &  C),  p.  1432,  §  7. 

The  Statute  of  Illinois  provides:    "Every  husband,  wife,  child,  parent. 


07G  THE  LAW  OF  DAMAGES. 

Damages  for  Injury  Resulting  from  Sale  of  Intoxicating  Liquors. 

Under  tlie  Iowa  statute  it  is  held,  that  where  the  wife  is 
injured  in  her  means  of  support  by  reason  of  a  sale  of  intoxi- 
cating liquors  to  her  husband,  it  is  no  defense  to  an  action  by 
her  therefor,  that  a  part  of  the  liquors  causinf^  the  intoxication 
were  sold  by  others;  that  the  seller  is  liable  if  he  contributed 
to  the  intoxication;  and  that  this  liability  exists  irrespective 
of  the  conduct  of  the  husband  previous  to  such  sale."  And 
the  wife  may  recover,  in  an  action  for  injury  to  property,  in 
consequence  of  a  sale  of  liquor  to  her  husband,  the  damages 
sustained  by  a  sale  of  her  chattels  by  him.'* 

In  Ohio  it  has  been  held,  that  if  the  action  is  for  an  injury 
to  the  "person"  of  the  plaintiff,  it  must  be  shown  that  the 
plaintitf  received  some  })hysical  injury  from  the  intoxicated 
person.  But  if  the  action  is  for  an  injury  to  the  "means  of 
support,"  the  damas^es  are  not  limited  to  the  immediate  results 
of  the  drunkenness,  but  may  include  sickness  and  insanity, 
caused  by  the  intoxication;  and  in  all  cases  where  the  plaintiff 
shows  a  right  to  recover,  the  jury  may  allow  exemplary  dam- 
ages, without  any  proof  of  actual  malice  or  aggravating  cir- 
cumstances.''* 

guardian,  employer  or  other  person,  who  shall  be  injured  in  person  or  prop- 
erty or  means  of  support,  by  any  intoxicated  person,  or  in  consequence  of  the 
intoxication,  habitual  or  otherwise  of  any  person,  shall  have  a  right  of  action 
in  his  or  her  own  name,  severally  or  jointly  against  any  pei-son  or  persons 
who  shall,  by  selling  or  giving  intoxicating  liquors,  have  caused  the  intoxica- 
tion, in  whole  or  in  part,  of  such  person  or  persons;  and  any  one  owning, 
renting,  leasing  or  permitting  the  occupation  of  any  building  or  premises, 
and  having  knowledge  that  intoxicating  liquors  are  to  be  sold  therein,  or  who 
having  leased  the  same  for  other  purposes,  shall  knowingly  permit  therein 
the  sale  of  any  intoxicating  liquors,  that  have  caused  in  whole  or  in  part, 
the  intoxication  of  any  person,  shall  be  liable,  severally  or  jointly,  with  the 
person  or  persons  so  selling  or  giving  intoxicating  liquors,  for  all  damages 
sustained  and  for  exemplary  damages."  This  statute  is  substantially  the 
same  in  its  provisions  as  the  Iowa  and  Ohio  statutes,  relating  to  this  subject. 
Woolheather  v.  Risley,  38  la.,  486.  See,  also,  Mulford  v.  Clewell,  21 
Ohio  St.,  191. 

34  Mulford  V.  Clewell,  supra. 

35  Schneider  v.  Hozier,  21  Ohio  St.,  98, 


STATUTOEY  PEOVISIONS.  677 


Damages  for  Injury  Kesulting  from  Sale  of  Intoxicating  Liquors. 


In  a  recent  case  in  Iowa  it  was  held,  that  where  various 
parties  had  sold  intoxicating  liquors  to  the  husband,  at  differ- 
ent times,  and  the  wife  had  sustained  damages  thereby,  they 
were  not  jointly  liable.  But  the  court  remarked:  "we  are  not 
to  be  understood  as  denying  a  joint  liability  in  cases  where 
the  successive  sales  by  several,  have  produced  a  particular  in- 
toxication, from  which  the  injury  sued  for  has  resulted.'"^ 

And  where  the  statute  of  New  Hampshire  provided  that: 
"Whenever  any  person  in  a  state  of  intoxication,  shall  commit 
any  injury  upon  the  person  or  property  of  any  other  individual, 
any  person  who  by  himself,  his  clerk  or  servant  shall  have 
unlawfully  sold  or  furnished  any  part  of  the  liquor,  causing 
such  intoxication,  shall  be  liable  to  the  party  injured  for  all 
damages  occasioned  by  the  injury  so  done,  to  be  recovered  in 
the  same  form  of  action  as  such  intoxicated  person  would  be 
liable  to,  and  both  such  parties  may  be  joined  in  the  same 
action;"  it  was  held,  in  an  action  under  said  statute,  that  it 
might  be  maintained  against  four  persons  who  separately  sold 
intoxicating  liquors  to  a  person  who  committed  the  assault 

3«  La  France  v.  Krager,  Supreme  Court  Iowa,  Dec.  Term,  1875,  to  be  pub- 
lished in  42  Iowa. 

In  a  recent  case  in  Iowa,  Day,  J.,  remarks:  "If  a  dozen  saloon  keepers 
should  each  sell  a  drink  of  whiskey  to  a  pai-ty,  from  the  combined  effect  of 
which  he  should  become  intoxicated  and  should  beat  another  or  destroy  his 
property,  the  law  has  no  means  of  determining  the  exact  amount  of  the  injury 
which  is  chargable  to  each.  Under  such  circumstances  we  have  no  doubt 
they  are  joint  wrongdoers,  and  that  each  is  liable  for  the  injury  done  by  all. 
They  could  aU  be  sued  together,  or  one,  or  any  number  of  them  separately. 
But  there  could  be  but  one  satisfaction  for  the  injury."  Kearney  v.  Fitz- 
gerald, June  Term,  1876.  (Sup.  Ct.  la.)  See,  also,  as  to  construction  of  the 
Iowa  statute,  Jewett  v.  Wansura.    Id. 

In  Engleken  v.  Hilger,  the  Supreme  Court  of  Iowa  recently  applied  the 
doctrine  of  contributory  injury  to  the  case  of  a  claim  for  injuries 
received  by  a  wife  from  the  intoxication  of  her  husband.  The  court  say: 
"The  question  for  determination  is,  can  a  wife  recover  damages  caused  by 
her  intoxicated  husband,  to  whose  intoxication  she  directly  contributed?  * 
*  *  We  are  of  the  opinion  that  she  cannot."  Opinion  by  Seevers,  C. 
J.,  June  T.,  1876. 


678  THE  LAW  OF  DAMAGES. 

Damages  for  Injury  Resulting  from  Sale  of  Intoxicating  Liquors. 

and  battery,  for  which  the  action  was  brought,  while  in  a  state 
of  intoxication  produced  by  the  liquor  so  furnished.  The 
court  say:  "The  doctrine  that  all  who  abet  or  participate  in 
a  wrongful  act  may  be  proceeded  against  jointly  as  princi- 
pals, is  •elementary.  No  reason  is  seen  why  it  does  not  cover 
the  case  of  different  persons  selling  liquors  to  one  who  commits 
a  trespass  while  in  a  state  of  intoxication  produced  by  all  the 
liquor  so  furnished.  One  seller  is  as  much  responsible  as  an- 
other, and  all  have  participated  in  the  wrong."" 

37  Badge  v.  Hughs,  53  N.  H.,  617. 


NOMINAL  DAMAGES.  679 


Wrongful  Acts  Import  Damages. 


CHAPTEE  XXXYI. 


NOMINAL  DAMAGES. 

Section  860.    "Wrongful  Acts  Import  Damages. 

861.  Instances. 

862.  The  Maxim  de  Minimis  non  Curat  Lex,  Considered. 

§  860.    Wrongful  Acts  Import  Damages.—There  is  no 

right  without  a  remedy;  uhi  jus^  ibi  remedium,  is  an  ancient 
maxim  of  the  law.  Therefore,  whenever  an  injury  is  done  to 
the  legal  rights  of  another,  or  whenever  a  person  is  damaged 
in  any  manner  by  the  misfeasance,  nonfeasance  or  malfeasance 
of  another,  the  injured  party  has  a  remedy  for  the  damages 
sustained.  And  whenever  such  an  injury  is  sustained,  the 
law  implies  damages,  although  there  may  be  no  proof  of 
actual  damages,  and  a  party  thus  injured  is  entitled  to  at  least 
nominal  damages,  which  may  be  any  small  sum,  as  five  cents. 
"Every  injury  imports  a  damage;'"  and  Justice  Story  says: 
"  We  are  of  opinion  that  where  the  law  gives  an  action  for  a 
particular  act,  the  doing  of  that  act  imports  of  itself  a  damage 
to  the  party.  Every  violation  of  a  right  imports  some  damage, 
and  if  none  other  be  proved  the  law  allows  nominal  damages.' 
Thus,  if  a  man  strikes  another  in  anger,  however  lightly,  or 

'  Ld.  Holt  in  Ashby  v.  "White,  1  Salk.,  19.  See,  also,  Fullman  v.  Steams, 
30  Vt.,  443,  where  it  is  held,  that  every  violation  of  aright  imports  some 
damage;  and  if  none  other  be  proved,  the  law  allows  nominal  damages. 

»  Whittemore  v.  Cutter,  1  GaU.,  429;  Paul  v.  Sloson,  22  Vt.,  231. 


680  THE  LAW  OF  DAMAGES. 

Wrongful  Acts  Import  Damages. 

knocks  off  liis  hat,  or  uses  words  slanderous  jper  se  in  reference 
to  him,  or  trespasses  bj  entering  his  fields,  or  overflowing  his 
lands,  the  law  will  imply  damages  without  any  proof  of  the 
same,  and  the  injured  party  will  be  entitled  to  sufficient  dama- 
ges to  carry  costs,  if  it  be  no  more  than  one  cent.'"  And  where 
water  is  wrongfully  diverted  from  a  mill-pond,  or  where  it  is 
wrongfully  caused  to  overflow  lands,  the  injured  party  should 
recover  without  proof  of  damages;  and  even  where  the  injury 
is  so  small  that  it  cannot  be  estimated,  still  the  injured  party 
is  entitled  to  at  least  nominal  damages.*  So,  in  a  suit  for  a 
breach  of  the  covenant  against  incumbrances,  a  party  who 
has  neither  been  evicted  nor  removed  incumbrances,  is  entitled 
to  nominal  damages.  And  in  a  suit  on  a  contract  to  pay 
debts  and  indemnify  the  debtor  against  the  same,  there  is  a 
breach  immediately  upon  the  omission  to  pay  any  debt  when 
it  falls  due,  and  the  plaintiff"  would  be  entitled  to  nominal 
damages.*^ 

And  where  the  plaintiff  in  a  suit  for  services  proves  servi- 
ces rendered,  but  omits  to  prove  the  value  of  those  services, 
he  is  entitled  to  a  nominal  sura  at  least.'  So,  a  party  is  enti- 
tled to  nominal  damages  where  there  is  any  infringement 
of  his  rights,  and  especially  where  a  continuance  of  the  wrong 
might  result  in  an  easement  or  incumbrance  on  land.'  And  in 
an  action  for  use  and  occupation  of  premises,  and  where  there 
is  23  roof  of  the  use  and  occupation  and  no  proof  of  value,  or  in  an 
action  fora  breach  of  a  covenant  of  seizin  and  warranty  by  a  pur- 

3  Whipple  V.  Cumberland  Manf.  Co.,  2  Story,  661;  Browner  v.  Davis,  15 
Cal.,  1;  Devendorf  V.  Werf,  42  Barb.  (N.  Y.),  228;  Bond  v.  Hilton,  2  Jones 
(N.  C),  149;  Champion  v.  Vincent.  20  Tex.,  811. 

4  Monroe  v.  Stickney,  48  Me.,  462;  Monroe  v.  Gates,  48  Id.,  463;  Stowell 
V.  Lonsolu,  11  Gray.  (Mass.),  4:34;  Cory  v.  Silcox,  6  Ind.,  39;  "Wright  v. 
Stowe,  4  Jones  (N.  C.  L.),  516;  Little  v.  Stamback.  63  N.  C,  285. 

s  Copeland  v.  Copeland,  30  Me.,  446;  Dye  v.  Mann,  10  Mich,,  291.    See, 
also.  Collier  v.  Gamble,  10  Mo.,  467. 
«  Owen  V.  O'Reilly,  20  Mo.,  603. 
7  Bassett  v.  Salsberry  Manf.  Co.,  8  N.  H.,  Fost.,  438. 


NOMINAL  DAMAGES.  681 


Instances— The  Maxim  De  Minimis  non  Curat  Lex,  Considered. 


cliaser  who  acquired  possession  under  his  vendor's  deed,  and  has 
not  been  evicted,  the  plaintiff  can  still  recover  nominal  dama- 
ges.* And  nominal  damages  at  least  should  be  recovered  for 
a  breach  of  an  agreement  to  withdraw  a  suit  without  proof  of 
actual  damages;'  for  neglect  of  duty  of  a  common  carrier 
whereby  an  injury  is  sustained,  without  proof  of  special  dama- 
ges;" for  a  breach  of  covenants  of  title  in  a  deed  where  there 
has  been  no  eviction;"  for  a  breach  of  an  agreement,  or  for  any 
injury  done  to  another,  but  no  proof  furnished  of  the  amount 
of  damages.'^  If  the  plaintiff  has  sustained  some  damage,  but 
the  jury  are  unable  to  ascertain  the  amount,  he  should  have 
a  verdict  for  nominal  damages." 

§  861.  Instances.— Where  no  actual  damages  were  shown 
to  have  resulted  to  the  plaintiff  from  a  breach  of  a  contract  to 
locate  a  certain  land  certificate,  it  was  held,  that  he  should 
recover  only  nominal  damages.'*  So,  where  the  defendant 
wrongfully  co-operated  to  tear  down  an  old  mill,  which  was  in 
such  a  condition  that  the  profits  of  the  same  could  not  exceed 
the  repairs,  and  erected  a  valuable  one  in  its  place,  it  was  held 
in  an  action  of  trespass  therefor,  that  although  there  was  a 
technical  trespass  by  the  defendant,  the  plaintiff  could  only 
recover  nominal  damages.'* 

§  862.  The  Maxim  De  Minimis  non  Curat  Lex,  Consid- 
ered.— There  are  cases,  however,  of  such  trifling  injury  that 

8  Smith  V.  Huizar,  25  Tex.,  205;  Noonan  v.  Usley,  22  Wis..  27;  Mecklain 
V.  Blake,  22  Id.,  495. 

9  Hogan  V.  Riley,  13  Gray  (Mass.),  515. 

1°  Southern  R.  Co.  v.  Kendrick,  40  Miss.,  374. 

"  Mosely  v.  Hunter,  15  Mo.,  322. 

i^  Brown  V.  Emerson,  18  Mo.,  103;  Clinton  v.  Mercer,  3  Murphy  (N.  C),  119. 

13  Freize  v.  Thompson,  1  Taunt.,  121.  And  where  there  was  a  breach  of 
contract,  but  no  substantial  damages  shown,  and  a  verdict  for  nominal 
damages,  and  the  matter  in  dispute  was  small,  the  court  refused  to  set 
aside  the  verdict.    Nichol  v.  Bostwick,  28  L.  J.  Exch.,  4. 

'4  Moore  v.  Anderson,  30  Texas,  224. 

'5  Jewett  V.  Whitney,  43  Me.,  242.  See,  also,  French  v.  Bent,  43  N.  H., 
448. 


682  THE  LAW  OF  DAMAGES. 

The  Maxim  De  Minimis  non  Curat  Lex,  Considered. 


no  action  at  law  can  be  maintained  therefor.  The  law  will 
afford  no  encouragement  to  useless  and  malicious  litigation. 
It  regards  not  mere  trifles,  De  minimis  non  curat  lex,  is 
the  familiar  maxim. 

Mr.  Broome  in  his  valuable  work  on  Legal  Maxims,  re- 
marks: "There  are  some  injuries  of  so  small  and  little  considera- 
tion in  the  law  that  no  action  will  lie  for  them;  for  instance, 
in  respect  to  the  payment  of  tithes,  the  principle  which  may 
be  extracted  from  the  cases  appears  to  be,  that  for  small  quan- 
tities of  corn,  involuntarily  left  in  the  process  of  rakiug,  tithe 
shall  not  be  payable  unless  there  be  any  particular  fraud,  or 
intention  to  deprive  the  parson  of  his  full  right.""  So,  where 
an  officer  who  had  attached  a  quantity  of  hay  and  grain  made 
use  of  a  pitchfork  belonging  to  the  debtor  in  removing  the 
same,  and  when  he  had  completed  the  removal  left  it  where  he 
found  it  and  where  it  was  received  by  the  debtor,  and  it  was 
in  no  way  injured  by  the  use;  it  was  held,  that  the  officer  was 
not  liable  for  such  use  of  the  fork."  And  where  the  action 
was  for  an  escape  on  mesne  process,  but  the  prisoner  had 
returned  to  the  custody  of  the  sheriff  and  no  actual  damage 
had  been  sustained,  it  was  held,  that  not  even  nominal  dama- 
ges could  be  recovered.'* 

'^  Broom's  Legal  Maxinxs,  143. 

'7  Paul  V.  Sloson,  22  Vt.,  231.  But  see,  Fullam  v.  Steams,  30  Vt.,  where 
the  maxim  de  minimis  non  curat  lex,  was  held  to  have  no  application  to  a 
■wrongful  and  positive  invasion  of  property. 

i8  Williams  v.  Mostyn,  4  M.  &  W.,  144.  See,  also,  Young  v.  Spencer,  10 
B.  &  C,  145;  21  E.  C.  L.,  47. 


SETTING  ASIDE  YERDICTS.  683 


When  the  Power  Exercised. 


CHAPTER  XXXYII. 


SETTING  ASIDE  YEEDICTS. 

Section  873.  "When  the  Power  Exercised. 

874.  Instances  where  Refused. 

878.  Instances  where  Verdicts  have  been  set  Aside. 

881.  Verdicts  in  case  of  Criminal  Conversation. 

882.  Reducing  Verdicts— Excessive  Damages. 

884.  "When  a  Remittitur  will  not  Avail. 

885.  Excessive  Verdicts  in  other  Cases. 

886.  Setting  Aside  Verdicts  for  Inadequate  Damages. 

888.    "When  Courts  "Will  Not  Set  Aside  Verdicts  for  Inadequacy. 

§  873.  When  the  Power  Exercised.— The  question 
whether  the  verdict  of  a  jury  should  be  set  aside  as  excessive 
or  inadequate,  is  frequently  presented  to  the  court  before 
which  the  case  is  tried,  as  well  as  the  appellate  court,  and 
some  consideration  of  the  subject  seems  to  be  here  demanded. 
It  may  be  remarked,  that  courts  seldom  exercise  this  power 
where  the  amount  depends  upon  a  question  of  fact,  or  is  un- 
liquidated, even  where  the  jury  have  not,  in  the  opinion  of 
the  court,  determined  the  case  as  it  should  have  been  on  the 
facts;  and  especially  where  there  is  conflicting  or  contradictory 
evidence.' 

The  reluctance  of  courts  to  interfere  with  the  findings  of 

» Newton  V.  Price,  41  Geo.,  186;  Holland  v.  Brooks,  40  Geo.,  94.  See, 
also,  1  Graham  &  W.  on  New  Trials,  409,  et  seq.  Courts  are  inclined  to 
uphold  the  reasonable  verdicts  of  juries  where  punitive  damages  are  proper 


684  THE  LAW  OF  DAMAGES. 

"When  the  Power  Exercised. 

juries  on  the  facts,  where  there  have  been  no  errors  of  law,  is 
illustrated  by  a  recent  case  in  Pennsylvania.  In  a  suit  by  the 
husband  for  the  death  of  his  wife,  who  was  killed  through  a 
collision  with  a  railroad  train,  it  apj)eared  that  the  plaintiff 
and  his  wife  were  riding  in  a  market  w^agon  down  a  graded 
slope  of  more  than  a  quarter  of  a  mile  in  plain  view  of  the 
defendant's  train  for  a  long  distance,  and  the  court  had  no 
doubt,  from  the  circumstances  of  the  case,  that  the  injury 
happened  from  either  the  plaintiff's  misfortune  or  fault,  yet 
as  the  case  had  been  given  to  the  jury  without  any  error  in 
law,  the  court  affirmed  a  verdict  of  $9,150  for  the  plaintiff." 

The  power  of  the  court  to  set  aside  verdicts,  and  grant  new  ' 
trials,  should  be  exercised  only  where  it  is  apparent,  from  the 
amount  of  the  verdict  or  otherwise,  that  the  jury  were  influ- 
enced by  passion,  prejudice,  corruption,  or  an  evident  mistake 
of  the  law  or  the  facts,  or  that  there  was  a  palpable  error  in 
comi)utation.'  This  doctrine  is  well  expressed  by  Justice 
Wilde,  who  remarks:  "In  all  cases  where  there  is  no  rule  of 
law  resrulatino:  the  assessment  of  damages  and  the  amount 

and  have  been  awarded,  Beale  V.  Railway  Co.,  1  Dill.  (U.  S.  C.  C),  568, 
(1871).  Courts  wiU  more  readily  grant  a  new  trial  where  the  question  in- 
volved is  a  mixed  question  of  law  and  fact,  or  where  the  facts  are  so  blended 
with  the  law,  and  the  law  and  the  facts  are  so  dependent  upon  each  other, 
that  it  is  difficult  to  separate  them,  as  in  cases  of  negligence,  and  especially 
in  cases  of  constructive  fraud,  Littlefield  v.  City  of  Norwich,  40  Conn.,  406, 
(1873).  See,  also,  Derwort  v.  Loomer,  21  Conn.,  245.  And  a  large  discre- 
tion is  given  to  the  trial  court  in  passing  on  the  question.  Sherman  v. 
Mitchell,  46  Cal.,  576  (1873).  Even  strong  preponderating  evidence  against 
the  verdict  is  not  sufficient  ground  to  set  aside  a  verdict,  unless  it  is  so  man- 
ifestly against  the  weight  of  evidence  as  to  show  it  to  have  been  the  result 
of  passion  or  prejudice.  Koester  v.  City  of  Ottumwa,  34  la..  41.  See,  also, 
to  the  same  effect,  Garretty  v.  Brazell,  34  Id.,  100;  Rice  v.  Sims,  8  Rich., 
416;  Clapp  v.  Hudson  &  C.  R.  Co.,  19  Barb.,  461.  See,  also,  Mayne  on 
Dam.,  555. 

»  Penn.  R.  Co.  v.  Goodman,  62  Pa.  St.,  329.  See,  also,  Adams  v.  The 
Mid.  R.  Co.,  31  L.  J.  R.  N.  S.  Exch.,  35  (1861). 

3  Elsworth  v.  Central  R.  Co.,  34  N.  J.  L.,  93  (1870);  Paulmier  v.  Erie  R. 
Co.,  34  N.  J.  L.,  151  (1870);  Ford  v.  Ward,  26  Ark.,  360;  Pittsburgh  R.  Co. 
V.  Hennigh,  39  Ind.,  509;  Chenowith  v  Hicks,  5  Ind.,  224;    Spencer  v.  Mc- 


SETTING  ASIDE  YERDICTS.  685 

When  the  Power  Exercised. 

does  not  depend  upon  computcation,  the  judgment  of  the  jury 
and  not  the  opinion  of  the  court,  is  to  govern,  unless  the 
damages  are  so  excessive  as  to  warrant  the  belief  that  the  jury- 
must  have  been  influenced  by  partiality  or  prejudice,  or  have 
been  misled  by  some  mistaken  views  of  the  merits  of  the 
case."*      But  when  the  verdict  of  the  jury  is  so  flagrantly 

Master,  16  111.,  405;  Oldfield  v.  The  N.  Y.  &  H.  R.  R.  Co.,  3  E.  D.  S.  (N.  Y.), 
103;  Patten  v.  Thompson,  22  Barb.,  87;  McGehee  v.  Shafer,  9  Tex.,  20; 
Woodson  V.  Scott,  20  Mo.,  272;  Bartle  v.  Merritt,  20  Mo.,  567;  Wells  v. 
Sawyer,  21  Mo..  3-54;  Sexton  v.  Brock,  15  Ark.  (Barb.),  345;  Pleasant  v. 
Heard,  15  Ark.,  403.  New  trial  will  be  refused  when  the  verdict  does  not 
shock  one's  sense  of  justice.  Creed  v.  Fisher,  9  Exch.,  472;  also,  26  Eng.  L. 
E.,  384;  Letton  v.  Youn^,  2  Met.  (K.  Y.),  558  Chapman  v.  Dodd.  10  Minn., 
350;  St.  Martin  v.  Des  Noyer,  1  Minn.,  156;  The  City  of  St.  Paul  v.  Kuby, 
8  Minn..  154;  Beaulieu  v.  Parsons,  2  Minn.,  37;  Goetz  v.  Ambs,  27  Mo.,  28; 
Weaver  v.  Page,  6  Cal..  681;  Alexander  v.  Thomas,  25  Ind.,  268;  Scherpf  v. 
SzadeczskT,  4  E.  D.  S.  (N.  Y.).  110;  Patten  v.  Chic.  &  N.  W.  R.  Co.,  22 
Wis.,  615;  Greene  v.  Southern  Exp.  Co.,  41  Geo.,  515,  where  the  judgment 
was  set  aside;  Chic.  &  N.  W.  R.  Co.  v.  Jackson,  55  111.,  492,  where  the 
judgment  was  set  aside;  City  of  Decatur  v.  Fisher,  53  111.,  407,  where  the 
verdict  was  set  aside;  Davidson  v.  Pol3meux,  17  L.  T.  (N.  S.),  289;  The 
Terre  Haute  &  C.  R.  Co.  v.  Vanatta,  21  III,  188,  where  a  verdict  of  $1,000 
was  set  aside;  Clapp  v.  The  Hud.  R.  R.  Co.,  19  Barb.  (N.  Y.).  461,  where  a 
verdict  of  |6,000  was  required  to  be  reduced  to  $4,000;  C.  R.  I.  &  P.  R.  Co. 
V.  Otto,  52  111.,  416;  C.  &  A.  R.  Co.  v.  Pondrom,  51  lU.,  333;  Treaner  v. 
Donahue,  9  Cush.  (Mass.),  228;  Nicholson  v.  The  N.  Y.  &N.  H.  R.  Co.,  22 
Conn.,  74;  Bell  v.  Morrison,  27  Miss.,  68;  Lang  v.  Hopkins,  10  Ga.,  37; 
Duffield  V.  Tobin.  20  Ga.,  428;  Marshal  v.  Gunter,  6  Rich.  (S.  C),  L..  419. 

It  is  within  the  province  and  power  of  the  court,  to  set  aside  a  verdict, 
which  does  not  reach  a  substantially  just  conclusion;  when  there  is  just 
ground  for  the  belief  that  the  jury  acted  through  prejudice,  passion,  mistake, 
or  any  other  cause,  which  should  not  properly  control  them.  Schultz  v.  Pac, 
Ins.  Co.,  14  Fla.,  73. 

In  refusing  a  new  trial,  where  a  verdict  of  £2,000  had  been  rendered  for 
a  malicious  prosecution,  Lord  Mansfield  said:  "Could  any  one  say,  that  any 
rational  man  of  character  would  for  £2,000  put  himself  in  this  situation? 
If  not,  the  damages  are  not  excessive."    Hewlett  v.  Crucliley.,  5 Taunt,  277. 

*  Worster  v.  Proprietors  of  Canal  Bridge,  16  Pick.,  575.  See,  also,  Shear- 
man V.  West.  Stage  Co..  24  Ta.,  515;  Gilbert  v.  Burtenshaw,  Cowper,  230; 
Whipple  V.  Cumberland  Man.  Co.,  2  Story,  661;  Wiggins  v.  Co£In,  3  Story, 
1;  Thurston  v.  Martin,  5  Mason.  197;  Kelly  v.  Sherlock,  1  L.  R.  (Q.  B.),  686, 
where  the  court  refused  to  set  aside  a  judgment,  on  account  of  the  inade- 
quacy of  damages.  Or  because  the  damages  were  more  than  the  court  would 
have  given.   Chenowith  v.  Hicks,  5  Ind.,  224. 


C86  THE  LAW  OF  DAMAGES. 

Instances  Where  Refused. 

excessive  that  the  mind  at  once  perceives  that  the  verdict  is 
unjust,  it  should  be  set  aside.' 

§  874.  Instances  Where  Refused.— In  a  recent  case  in 
Massachusetts,  in  an  action  to  recover  daman^es  caused  by  a 
locomotive,  tlu-oui,'h  the  negligence  of  the  defendant's  agents, 
and  Avhere  three  verdicts  had  been  successively  obtained  for 
the  plaintiff  in  the  sum  of  $15,000,  $18,000  and  $22,250 
respectively,  and  the  first  two  had  been  set  aside  on  the  defend- 
ant's motion  for  mis-instructions  to  the  jury,  and  an  applica- 
tion to  set  aside  the  last  one  was  made  on  the  ground  that  it 
was  excessive,  the  court  refused  to  disturb  it." 

So,  where  the  plaintiff  obtained  a  verdict  for  $5,5^0,  for 
injuries  which  were  permanent  and  which  unfitted  hitn  for  the 
business  for  which  he  had  been  reared,  or  for  any  laborious 
employment,  and  would  subject  him  to  physical  suffering 
during  life;  it  was  held,  that  there  was  not  sufficient  evidence 
of  partiality,  passion  or  prejudice  on  the  part  of  the  jury  to 
warrant  the  setting  aside  of  the  verdict  as  excessive.' 

§  875.  And  where  injuries  sustained  by  the  plaintiff, 
caused  by  the  defendant,  a  carrier  of  passengers,  were  of  an 
exceedingly  painful  character  and  of  a  permanent  nature, 
some  of  the  effects  of  which  would  probably  continue  during 
and  shorten  his  life,  and  the  plaintiff  was  in  early  manhood, 
and  engaged  in  an  extensive  and  lucrative  business  as  a  lawyer, 
which  business  was  impaired  by  his  inability  to  give  it  the 

s  Pleasants  v.  Heard,  15  Ark.,  403;  Greene  v.  Southern  Exp.,  Co.,  41  Geo., 
515;  Ayliff  V.  Harday,  25  Ark.,  49;  Chicago,  etc.,  R.  Co.  v.  Peacock,  48  lU., 
253;  Schwabacker  V.  Wills,  49  lU.,  257.  See,  also,  Boyce  v.  Cal.  Stage  Co., 
25  Cal.,  460;  Schneider  v.  McCabe,  36  N.  Y.,  8:3.  Creed  v.  Fisher,  26  Eng. 
L.  &  E.,  384.  Or,  the  excessiveness  is  apparent  at  first  blush.  "Woodson  v. 
Scott,  20  Miss.,  272.  And  particularly  where  there  is  no  certain  measure. 
Lang  V.  Hopkins,  10  Geo.,  37;   Fish  v  Roseberry,  22  111.,  288. 

6  Shaw  V.  Boston,  etc.,  R.  Co.,  8  Gray  (Mass.),  45.  In  cases  of  seduction 
and  Crim.  Con.,  the  courts  seldom  interfere.  See,  Travis  v.  Barger,  24  Barb. 
(N.  Y.),  614. 

7  Karasich  v.  Hasbrook,  28  Wis.,  569. 


SETTING  ASIDE  YERDICTS.  687 

Instances  Where  Refused. 

requisite  attention  since  bis  injury;  it  was  held,  that  under 
these  circumstances  the  court  had  no  data  from  which  it  could 
say,  that  a  verdict  for  the  plaintiff  of  $20,000,  was  excessive, 
or  greater  than  the  compensation  which  he  should  justly 
receive.' 

So,  where  property  belonging  to  A.,  was  attached  as  the 
property  of  B.,  the  officer  having  full  notice  of  B.'s  title,  and 
it  was  sold  on  execution,  and  A.  sued  the  sheriff  therefor;  the 
court  refused  to  set  aside  a  verdict  as  excessive,  though  the 
amount  was  nearly  three  times  as  much  as  that  produced  at 
the  sheriff's  sale  of  the  property."  And  in  actions  for  a  breach 
of  promise  of  marriage,  courts  are  reluctant  to  interfere  with 
the  verdicts  of  juries.'  In  Tennessee,  where  there  was  a  ver- 
dict of  $5,000  for  a  breach  of  promise  of  marriage,  the  court 
refused  to  set  it  aside  as  excessive.''  So,  Lord  Mansfield,  refused 
to  set  aside  a  verdict  for  a  breach  of  promise  of  marriage  of 
£700,  although  the  defendant  was  only  receiving  a  salary  of 
££00  a  year.' 

And  in  cases  generally,  where  the  jury  are  at  liberty  to 
impose  exemplary  damages,  a  new  trial  will  not  be  granted  on 
the  ground  of  excessive  damages  unless  they  are  so  flagrantly 
excessive  as  to  warrant  the  conclusion  that  the  jury  were  actu- 
ated by  passion  partiality  or  prejudice.*     But  where  it  is  plain, 

8  Walker  v.  Erie  R.  R.  Co.,  63  Bard.  (N.  Y.).  260  (1872).  And  where  two 
or  more  verdicts  concur,  this  will  have  much  weight  in  determining  the  ques- 
tion of  setting  aside  the  last  one.  Clerk  v.  Udall,  2  Salk.,  649;  Macon,  etc., 
v.  Winn,  26  Geo.,  250;  Russ  v.  The  Steamboat  War  Eagle,  14  la.,  365. 
Before  the  appellate  court  will  set  aside  a  verdict  it  must  appear  manifest 
and  clear  that  it  is  excessive.     Id. 

9  Ayer  v.  Bartlett,  9  Pick.,  156.  And  a  verdict  will  not  generally  be  set 
aside  where  there  is  a  recoupment,  counter-claim,  or  set-oiF  pleaded,  and 
some  proof  to  sustain  the  same,  unless  manifestly  unjust.  Huston  v.  Bloom, 
33  N.  Y.  Superior  Ct.,  (Jones  &  Spencer),  115. 

»1  Graham  &  W.  on  New  Trials,  440,  et  seq. 

'Goodall  V.  Thurman,  1  Head  (Tenn.),  209. 

3  1  Graham  &  W.  on  New  Trials,  440. 

4McGehee  v.  Shafer,  9  Tex.,  20.    See,  also,  Kenedy  v.  North  Mo.  R.  Co., 


688  THE  LAW  OF  DAMAGES. 

Instances  Where  Refused. 

that  exemplary  damages  are  not  proper,  and  the  jnrj  liave 
included  such  damages  in  their  verdict,  it  should  be  set  aside.* 
§  876.  In  an  action  against  a  railway  company  to  recover 
damages  for  an  injury  caused  by  the  defendant's  negligence, 
which  confined  the  phiintifF  in  bed  for  a  month  or  six  weeks, 
and  so  destroyed  his  eyesight,  that  in  the  opinion  of  a  physi- 
cian who  examined  him,  he  would  never  recover  it,  a  verdict 
of  $3,000  was  held  not  excessive.*  So,  in  England,  in  an  action 
for  false  imprisonment  of  the  plaintiff,  arrested  on  a  general 
warrant  of  the  Secretary  of  State  on  suspicion  of  having 
printed  the  "Xorth  Briton,"  a  newspaper  then  printed  in 
that  country,  and  where  it  appeared  that  he  was  only  kept  in 
custody  about  six  hours  and  that  the  defendant  "used  him  very 
civilly  by  treating  him  with  beefsteaks  and  beer,  so  that  he 
suffered  very  little  or  no  damages,"  but  the  jury  rendered  a 
verdict  for  £300;  the  court  refused  to  set  it  aside  as  excessive, 
it  being  principally  for  exemplary  damages.^     So,  in  the  same 

36  Mo.,  051;  Sawyer  v.  Han.  &  St.  Jo.  R.  Co.,  37  Mo.,  240;  WiUiamson  v. 
West.  Stage  Co.,  24  la.,  171. 

s  Beveridge  v.  Welch,  7  Wis.,  465. 

«  New  Jersey,  etc.,  R.  Co.  v.  West,  32  N.  J.  L.,  91. 

7  Huckle  V.  Money,  2  Wilson.  205.  In  determining  the  motion  for  a  new 
trial  in  this  case  on  the  ground  of  excessive  damages,  Lord  Chief  Justice 
Pratt  (afterwards  Lord  Camden),  said:  ''The  personal  injury  done  him  (the 
plaintiff),  was  small,  so  that  the  jury  if  they  had  been  confined  by  their  oath 
to  consider  the  mere  personal  injury  only,  would  perhaps  have  thought  £20 
damages  sufficient;  but  the  small  injury  done  the  plaintiff,  or  the  inconsidera- 
bleness  of  his  station  and  rank  in  life,  did  not  appear  to  the  jury  in  that 
striking  light,  in  which  the  great  point  of  law  touching  the  liberty  of  the  sub- 
ject appeared  to  them  at  the  trial;  they  saw  a  magistrate  over  all  the  King's 
subjects,  exercising  arbitraiy  power,  violating  magna  charta,  and  attempting 
to  destroy  the  Hberty  of  the  kingdom,  by  insisting  upon  the  legality  of  this 
general  warrant  before  them;  they  heard  the  King's  counsel,  and  saw  the 
Solicitor  of  the  Treasury  endeavoring  to  support  and  maintain  the  legality  of 
the  warriuit  in  atjTannical  and  severe  manner;  these  are  the  ideas  which 
struck  the  jury  on  the  trial,  and  I  think  they  have  done  right  in  giving  exem- 
plaiy  damages.  *  *  *  Upon  the  whole  I  think  the  damages  are  not 
excessive;  and  it  is  very  dangerous  for  the  judges  to  intermeddle  in  damages 
for  torts;  it  must  be  a  glaring  case  indeed  of  outrageous  damages  in  a  tort, 
and  which  all  mankind  at  first  blush  must  think  so,  to  induce  a  court  to  grant 
anew  trial  for  excessive  damages." 


SETTmG  ASIDE  YEEDICTS.  689 


Instances  Where  Refused. 


country,  a  verdict  of  £500  was  rendered,  in  an  action  of  tres- 
pass, quare  clausumf regit,  where  it  appeared  that  the  plaintiff, 
a  gentleman  of  fortune,  was  shooting  on  his  own  estate  when 
the  defendant,  a  banker,  magistrate  and  member  of  Parliament, 
forced  himself  on  the  plaintiff's  grounds  and  fired  at  game 
several  times,  and  used  very  intemperate  language,  the  court 
refused  to  set  it  aside.' 

So,  in  the  same  country,  the  court  refused  to  set  aside  a  ver- 
dict of  £50,  for  debauching  the  plaintiff's  daughter;  Wilmot, 
C.  J.,  remarking:  "That  although  the  plaintiff's  loss  in  this 
case  may  not  amount  to  twenty  shillings,  yet  the  jury  in  this 
case  have  done  right  in  giving  liberal  damages.'"  Nor  will  a 
verdict  be  set  aside,  where  the  excess  is  caused  by  the  defend- 
ant's own  fault.'" 

§  877.  And  in  an  action  against  a  railroad  company,  for 
injuries  resulting  from  its  negligence,  by  which  the  plaintiff 
was  confined  to  his  bed  for  six  weeks;  suffered  great  pain;  was 
unable  to  attend  to  his  business  for  several  months;  compelled 
to  pay  from  $1,200  to  1,500  for  physician's  services  and  other 
expenses,  and  was  left  permanently  lame;  a  verdict  of  $12,000 
damages,  was  held  not  excessive."    And  where  a  train  of  freight 

8  Merest  v.  Harvey,  5  Taunt. ,  442,  On  the  motion  to  set  aside  the  judgment 
in  this  case,  Chief  Justice  Gibbs  said:  "I  wish  to  know,  in  a  case  where  a 
man  disregards  every  principle  which  actuates  the  conduct  of  a  gentleman, 
what  is  to  restrain  him  except  large  damages."  And  Heath,  J.,  said:  "I 
remember  a  casewherea  jury  gave  £500  damagesformerelyknockingaman's 
hat  off,  and  the  court  refused  a  new  trial." 

9  TuUidge  v.  Wade,  3  Wilson,  18.  It  appears  in  this  case  that  on  the 
hearing  of  the  motion  for  a  new  trial,  affidavits  were  offered  showing  the  age 
of  the  seduced  to  be  thirty  years.  But  Lord  Chief  Justice  Wilmont  remarked : 
"A.  B.  (the  plaintiff's  daughter),  being  of  the  age  of  thirty,  is  nothing  to 
mitigate  damages,  or  lessen  the  defendant's  fault,  and  we  will  pay  no  regard 
to  any  affidavit  read  to  us." 

to  Brown  v.  Tanner,  1  Car.  &  P.,  651;  Billingsley  v.  Groves,  5  Ind.,  55-3. 

"  RockweU  V.  Third  Avenue  R.  Co.,  64  Barb.  (N.  Y.),  438,  and  where  it 
held  that  the  presumption  of  negligence  was  complete  where  it  appears  that 
defects  in  a  railroad  exist,  and  an  injury  is  caused  thereby. 

44 


r,90  THE  LAW  OF  DAMAGES. 

Instances  "Where  Verdicts  have  been  Set  Aside. 

cars  detached  from  the  engine  was  permitted  to  cross  a  public 
street  without  signal  or  control,  it  was  held  to  constitute  neg- 
ligence and  that  a  verdict  for  $2,400  damages  in  an  action 
under  the  sbitute  of  Illinois,  for  the  death  of  the  plaintift^s 
husband  caused  thereby,  was  not  excessive." 

And  in  case  of  a  great  personal  injury,  and  expenses  thereby 
incurred,  caused  by  the  gross  negligence  of  a  railroad  company, 
culpable  in  its  nature,  and  such  as  to  authorize  punitive  dama- 
jres,  the  court  refused  to  set  aside  a  verdict  of  $S,000,  as 
excessive.'  So,  the  Supreme  Court  of  Missouri  have  held,  that 
they  will  not  set  aside  a  verdict  on  the  ground  of  excessive 
damages,  unless  it  appears  at  first  blush  that  the  damages  are 
flagrantly  excessive,  or  that  the  jury  have  been  influenced  by 
passion,  prejudice,  or  partiality.'  And  the  Supreme  Court  ot 
^ew  York  refused  to  set  aside  a  verdict  of  $2,500,  for  a  severe 
though  not  a  permanent  injury  to  the  plaintifl''s  hand,  caused 
by  the  defendant's  negligence.'  So  a  verdict  of  $4,500  for  the 
loss  of  an  arm,  was  not  considered  excessive.* 

§  878.  Instances  where  Verdicts  have  been  Set  Aside. 

— On  the  other  hand,  where  the  plaintiff"  had  been  injured  by 
a  railroad  collision  through  the  negligence  of  the  defendant's 
servants,  though  without  their  gross  fault,  the  injury  being 
on  the  head,  but  the  more  serious  injury  being  to  the  foot,  so 
that  it  became  necessary  to  remove  the  outside  of  it  and  one 
toe,  and  the  jury  found  a  verdict  for  $11,000;  the  court  ordered 

'=»  Chicago,  etc.,  R.  Co.,  v.  Garvey,  58  lU.,  83.  So  a  verdict  of  $20,000, 
for  injuries  caused  by  the  gross  negligence  of  a  common  carrier,  and  where 
punitive  damages  were  allowed,  was  sustained  by  the  court.  Caldwell  v. 
New  J.  Steamboat  Co.,  47  N.  Y.,  282. 

'  Chicago  &  Alton  R.  Co.  v.  Wilson,  63  111.,  167.  So  a  verdict  will  not  be 
set  aside  where  there  is  sufl5cient  evidence  to  justify  it  on  any  one  of  the 
issues.    Crosset  v.  Whelan,  44  Cal.,  200  (1872). 

»  Kennedy  v.  North  Mo.  R.  Co.,  36  Mo..  351  (1865). 

3  Maloy  V.  New  York  Cent.  R.  Co.,  58  Barb.  (N.  Y.).  182  (1870). 

*  Mentz  V.  Second  Av.  R.  Co.,  2  Robertson  (N.  Y.  Superior  Ct.  R.),  356 
(1864). 


SETTING  ASIDE  YEEDICTS.  691 

Instances  Where  Verdicts  have  been  Set  Aside. 

a  new  trial,  unless  the  plaintiff  would  consent  to  have  the 
verdict  reduced  to  $5,000,  and  say:  "The  damages  which  the 
jury  have  seen  fit  to  award  to  the  plaintiff  are  more  than  tAvice 
as  much  as  could  have  been  awarded  if  the  accident  had 
proved  fatal  to  the  plaintiff.  *  *  *  There  is  great  plausi- 
bility in  the  argument  that  the  defendants  ought  not  to  be 
liable  for  a  greater  amount  of  damages  in  this  case,  than  they 
would  have  been  if  the  plaintiff  had  actually  lost  his  life."  ^ 
And  where  a  brakeman,  employed  at  $40  per  month,  lost  an 
arm  through  the  negligence  of  the  railroad  company,  and 
recovered  therefor  a  verdict  for  $10,000,  where  exemplary 
damages  were  not  authorized,  and  the  limit  of  recovery  by  the 
legal  representatives  of  the  deceased,  for  an  injury  causing 
death,  was  $5,000,  the  court  of  Illinois  held,  that  as  the 
annual  interest  on  the  amount  of  the  verdict  was  more  than 
twice  the  annual  wages  of  the  plaintiff,  and  more  than  twice 
the  sum  which  his  legal  representatives  could  have  recovered 
in  case  of  his  death;  and  considering  farther  that  he  was  able 
to  earn  as  much  in  many  occupations  without  the  arm  as  he 
did  as  brakeman  before  the  injury,  the  verdict  should  be  set 
aside  as  excessive,  and  a  new  trial  granted."  So,  a  verdict  of 
$5,000  against  a  city  for  a  severe  if  not  permanent  injury  to 
the  plaintiff's  ankle,  and  other  damages  resulting  therefrom, 
caused  by  a  defective  sidewalk,  was  set  aside  as  excessive,  as 
indicating  partiality  and  improper  bias  on  thejDart  of  the  jury 
who  allowed  exemplary  damages,  which  were  not  proper  under 
the  facts  of  the  case.^ 

s  Collins  V.  The  Albany  S:  Sch.  R.  Co..  12  Barb.,  492;  Murray  v.  The  Hud- 
son R.  R.  Co.,  47  Barb.  (N.  Y.),  196. 

6  Illinois  Cent.  R.  Co.  v.  Welch,  52  111..  183.  See,  also,  Moore  v.  Martin, 
IB.Mon.  (Ky.),  97;  Cassin  v.  Delaney,  33  N.  Y.,  178;  Belknap  v.  Rail- 
road, 49  N.  H.,  374;  Doyle  v.  Dixon,  97  Mass.,  208;  Mortimer  v.  Thomas, 
25  La.  An..  165;  Peoria  Bridge  Asso'n  v.  Loomis,  20  111.,  235,  where  a  ver- 
dict for  $5,750  for  an  injury  received  by  the  gross  negligence  of  the  Associa- 
tion, was  set  aside. 

7  Goodno  V.  Oshkosh,  28  Wis.,  300.  A  verdict  of  $1,525,  against  a  railroad 
company  for  a  sprained  ankle,  caused  by  the  negligence  of  the  company, 


692  THE  LAW  OF  DAMAGES. 

Instances  Where  Verdicts  have  been  Set  Aside. 

A  verdict  of  $5,000  a«jj;iinst  a  ruilroud  comj^my  for  personal 
injuries,  tlic  chief  of  which  was  a  deformity  and  some  loss  of 
power  of  the  ri<^ht  hand,  was  held  to  be  excessive  and  the 
judgment  rendered  thereon  was  reversed/*  And,  where  the 
plaintiff  owned  two  diseased  horses,  an<l  tliedefond-ints,  believ- 
ing- the  disease  to  be  contagious,  and  to  ])revent  it  from  spread- 
inf,  entered  npon  the  plaintiff's  premises  and  killed  the 
horses,  and  tluMC  was  no  malice  on  the  part  of  the  defendants; 
it  was  held,  that  the  defendants  were  liable  for  actual  damages 
sustained;  but  the  judgment  of  the  court  below  for  nearly 
double  the  value  of  the  horses,  was  held  excessive/' 

In  a  recent  case  in  Alabama,  where  an  action  was  brought 
for  injuries  received  by  a  ])assenger,  through  the  gross  negli- 
gence of  a  carrier,  Safford,  J.,  in  delivering  the  opinion  of  the 
Supreme  Court  of  that  state,  remarks:  "  Of  course,  gross  negli- 
gence maybe  of  a  more  or  less  aggravated  character,  requiring 
a  corresponding  graduation  of  the  amount  of  damages  to  be 


was  also  held  excessive,  in  a  case  where  the  facta  showed  the  defendant  only 
liable  for  compensatory  damages.  The  Chicago,  etc..  R.  Co.  v.  Dunn,  52 
111..  451.  And  where,  to  escape  an  expected  collision  with  two  freight  cars 
which  had  been  carelessly  unconplo(l  on  a  downward  grade,  a  mail  agent 
jumped  from  a  passenger  train  and  sprained  his  ankle,  and  was  thereby 
deprived  of  two  weeks'  salary  at  the  rate  of  $1,080  per  annum;  it  was  held 
that  the  circumstances  did  not  warrant  punitive  damages,  and  that  a  verdict 
of  $2,500  was  excessive.    Spicer  v.  Chicago,  etc.,  R.  Co.,  29  Wis.,  580. 

And  where  a  portion  of  the  jurors  were  induced  to  assent  to  a  verdict  for 
the  sum  of  |1.500  instead  of  $1,000  by  drawing  lots,  the  verdict  was  set 
aside.  liCvi  v.  Brannan,  39  Cal.,  485.  So  a  verdict  will  be  set  aside  where 
the  jury  arrive  at  the  same  by  agreeing  that  each  shall  mark  an  amount,  and 
that  the  total  of  these  amounts  shall  be  divided  by  the  number  of  the  jurors, 
and  that  the  amount  thus  obtained  shall  be  the  verdict.  Manix  v.  Malory, 
7  la.,  81;  Schlanler  v  Porter,  Id..  482;  Harvey  v.  Rickett,  15  Johns.,  87; 
Warner  V.  Robinson,  1  Root,  94.  See,  also,  2  Grah.  &  W.  on  New  Trials, 
578,  ct  seq. 

*^  Union,  etc..  R.  Co.  v.  Hand,  7  Kans..  380.  See,  also.  111.  Cent.  R.  Co. 
V.  Weldon.  52  111.,  290,  where  a  verdict  of  $5,000  was  set  aside.  Chicago 
etc.  R.  Co.  V  McAra.  Id.,  296,  Avhere  a  verdict  also  of  $5,000  for  injury  to 
tlie  person  was  set  aside. 

«  Franz  v.  Hilterbrand,  45  Mo.,  121.  .         * 


SETTmG  ASIDE  YERDICTS.  693 

Instances  Where  Verdicts  have  been  Set  Aside. 

assessed.  The  punitive  damages  ought  also  to  bear  propor- 
tion to  the  actual  damages  sustained.  *  *  *  It  is  the 
province  of  the  court  to  see  that  justice  is  done,  and  when  the 
assessment  is  manifestly  unjust,  whether  too  small  or  exces- 
sive, a  new  trial  should  be  granted."  The  evidence  showed 
that  the  passenger's  forehead  was  gashed,  his  ankle  sprained, 
and  that  he  was  unfit  for  business  about  two  months,  for  which 
the  jury  found  as  damages  S4,000.  This  was  held  excessiw, 
under  the  circumstances  and  set  aside.'*  So,  a  verdict  against 
a  railroad  company  for  $3,775,  for  negligently  causing  the 
death  of  a  girl  ten  years  old,  where  the  evidence  showed  no 
ground  for  extraordinay  expectations  of  pecuniary  benefit 
from  a  continuance  of  the  life  of  the  deceased,  was  set  aside 
as  excessive.  And  it  was  held  that  a  verdict  for  more  than 
$2,000  in  such  a  case  should  be  set  aside." 

And  where  a  party  had  sustained  damage  by  the  negligence 
of  a  railroad  company,  in  loss  of  time  and  injury  to  his  team, 
to  the  amount  of  about  $000,  and  lost  the  toes  of  his  left  foot, 
by  a  collision  at  a  crossing  with  a  railroad  train,  the  injury 
not  being  the  result  of  any  willful  act  of  the  railway  company, 
or  its  agents,  a  verdict  of  $5,875,  was  held  to  be  outrageously 
excessive."  So,  in  the  absence  of  any  evidence  showing  will- 
fulness or  wantonness  on  the  part  of  a  railroad  company,  in 
an  action  for  negligence  resulting  in  an  injury  rendering  the 
plaintiff  a  cripple,  even  for  life,  a  verdict  of  $25,000  therefor 
was  held  excessive." 

And  where  the  plaintiff,  who  was  a  cooper  by  trade,  though 
occupied  at  the  time  as  a  teamster,  received  an  injury  through 
the  defendant's  negligence,  resulting  in  the  loss  of  a  hand; 

4S  Mobile  &  Mont.  R.  Co.  v.  Ashcraft,  48  Ala.,  15. 

«  Potter  V.  Chic  &  N.  W.  R.  Co.,  22  Wis.,  616  (1868),  in  which  case  the 
court  refused  to  allow  a  part  of  the  judgment  remitted  and  affirm  it  as  to 
the  remainder. 

so  Chicago  &  R.  I.  R.  Co.  v.  McKean,  40  lU.,  218  (1866).  The  verdict  iu 
this  case  was  regarded  at  "first  blush"  as  excessive  and  the  result  of  passion 
and  prejudice. 

5'  Chicago  &  C.  R.  Co.  v.  Fillmore,  57  111.,  265  (1870). 


C9i  THE  LAW  OF  DAMAGES. 


Verdicts  In  Cases  of  Criminal  Conversation. 


and  on  the  trial  of  the  action  therefor  there  was  very  little 
evidence  as  to  the  plaintiffs  former  or  jiresent  capacity  for 
labor,  and  none  as  to  his  ordinary  earnings  (»r  wai,'e8;  or  as  to 
the  extent  of  his  bodily  sutTerings;  or  to  show  that  he  was 
not  now  in  good  health;  or  how  long  ho  was  laid  up  or  inca- 
pacitated  for  labor;  or  the  amount  of  his  medical  or  othur 
expenses;  but  it  did  appear  that  he  was  able  to  walk  about; 
and  there  was  a  verdict  of  $8,000  therefor;  tlie  court  on  ai)i)eal, 
held  the  verdict  excessive,  and  that  it  should  be  set  aside, 
unless  the  ])laintiff  would  consent  to  reduce  such  damages  to 
the  sum  of  $0,000." 

Where  an  action  was  brought  by  a  brakoinan  for  an  injury 
sustained  by  liim  by  reason  of  the  negligence  of  a  railroad 
company,  and  it  appeared  that  the  plaintiff  in  attempting  to 
descend  a  ladder  while  the  train  was  in  motion,  in  obedience 
to  a  signal  from  the  engineer,  lost  his  hold  by  reason  of  a  defect 
in  the  ladder  and  fell  to  the  ground,  and  the  wheels  of  the  car 
passing  (»ver  his  legs  injured  them  so  that  amputation  became 
necessary,  an<l  he  recovered  a  verdict  for  $18,000  therefor,  the 
Supreme  Court  of  Illinois,  regarded  it  as  excessive,  and  held 
that  it  should  be  set  aside." 

§  881.  Verdicts  in  Cases  of  Criniiiuil  Coiiversiition.— 
So  reluctant  have  courts  been  to  interfere  with  verdicts  in 
cases  of  Crlm.  Con.^  that  up  to  a  recent  period  it  is  said,  the 
power  of  the  court  had  never  been  exercised  to  set  aside  a  ver- 
dict as  excessive,  in  such  cases."  There  would  appear  to  be 
no  good  reason  for  making  this  an  exception  to  the  rule.  But 
in  a  recent  case  in  New  York,  where  a  verdict  was  obtained 
against  the  defendant  for  enticing  away  the  plaintiff's  wife, 

5-  Murray  v.  Hud.  Riv.  R.  Co..  47  Barb.  (N.  Y.),  196  (1866). 

53  Chicago  &  N.  W.  R.  Co.  v.  Jackson,  55  111.,  492  (1870j. 

54  Smith  V.  Masten,  15  Wend.,  270.  In  such  cases  the  courts  do  not  inter- 
fere without  proof  of  the  most  flagrant  abuse.  Grab.  &  W.  on  N.  T..  412. 
See,  also,  Travis  v.  Barger.  24  Barb.  (N.  Y.),  614,  and  cases  cited.  Torre 
V.  Summers,  2  Nott  &  McCord,  207. 


SETTING  ASIDE  VERDICTS.  695 


Reducing  Verdicts -Excessive  Damages. 


the  court  refused  to  set  aside  the  verdict  of  $10,000  as  exces- 
sive. The  court  held,  that  the  verdict  in  such  a  case  should 
not  be  set  aside  without  some  other  fact  than  the  amount  of 
damages,  to  show  that  the  jury  were  actuated  by  improper 
motives."  And  the  Supreme  Court  of  New  York  refused  in 
such  a  case  to  set  aside  a  verdict  of  $3,000,  although  there  was 
some  proof  of  negligence  on  the  part  of  the  husband." 

§  882.  Reducing  Verdicts— Excessive  Damages.— As 
before  observed,  the  statutes  of  various  states  fix  the  maximum 
of  damages  allowed  to  certain  parties,  for  injuries  resulting 
in  death.  But  in  other  cases  the  jury  must  assess  them,  gov- 
erned by  such  rules  as  we  have  mdicated.  As  a  general  rule, 
perhaps  it  may  be  said  that  in  the  absence  of  statutory  limita- 
tion, damages  resulting  from  the  death  of  a  person  are  not 
reirarded  as  excessive,  if  thev  do  not  exceed  $5,000.  In  Sher- 
man  v.  The  Western  Stage  Company,  supra,  which  was  an 
action  for  damages  for  the  death  of  a  wife,  and  the  amount 
was  not  limited  by  statute,  a  verdict  of  $8,000  was  regarded  as 
excessive  in  the  amount  of  $3,000,  and  the  plaintiff  offering 
to  remit  that  amount,  judgment  was  rendered  for  $5,000.*' 

It  is  a  common  practice  of  courts  where  the  damages  are 
excessive  to  make  an  order  for  the  setting  aside  of  the  verdict 
conditional,  on  the  reduction  of  the  verdict,  or  to  leave  it  op- 
tional with  the  plaintiff  to  reduce  the  verdict  to  the  sura  which 
the  court  deems  reasonable,  under  all  the  circumstances  of  the 
case,  or  to  have  it  set  aside.""  Thus,  where  the  complainant 
asked  $800  damages  for  six  months  occupation  of  premises, 

s7Schcrpf  V.  Szadeczky,  1  Abb.  (N.  Y.),  Pr.  R.,  366;  s.  c,  4  E.  D.  Smith, 
110. 

58 Smith  V.  Matsen,  15  Wend.,  270. 

59  24  la.,  515.  See,  also,  Murray  v.  Hud.  R.  R.  Co.,  47  Barb.,  196,  where 
the  court  required  the  plaintiff  to  reduce  a  judgment  of  $8,000  to  $6,000 
or  it  would  be  set  aside. 

«°Id.;  Harrell  v.  Durance,  9  Fla.,  490;  Brockmanv.  Barryhill,  16  la.,  183; 
Loyd  V.'  Hicks.  31  Geo.,  140;  Long  v.  Lamkin,  9  Cush.  (Mass.),  361.  See, 
also,  Belknap  v.  Boston,  etc.,  R.  Co.,  49  N.  H.,  3.58. 


696  THE  LAW  OF  DAMAGES. 

Reducing  Verdicts— Excessive  Damages. 

and  the  jury  awarded  damages  for  the  value  of  a  year's  occu- 
pation, viz:  $1,600,  tlie  court  presumed  in  tlie  absence  of  any 
proofs  to  the  contrary,  that  the  value  was  uniform  throughout 
the  year,  and  the  plaintiff  having  in  the  court  below  remitted 
the  excess  over  the  amount  claimed,  judgment  for  that  amount 
was  affirmed."  So  where  in  an  action  upon  an  account,  the  jury 
rendered  a  verdict  for  tlie  plaintiff  for  the  full  amount,  and  it 
appeared  that  on  the  trial  the  defendant  offered  in  evidence  a 
deposition  showing  part  payment  of  the  account  which  was 
improperly  rejected,  the  judgment  for  this  cause  was  reversed 
on  error;  but  upon  the  plaintiff  below  entering  a  remittitur 
in  the  court  above,  for  the  amount  proved  by  the  deposition 
to  have  been  paid  with  interest  up  to  the  time  of  the  rendition 
of  the  judgment  in  the  court  below,  the  court  rendered  a  judg- 
ment for  the  balance."^ 

So,  where  in  trespass  quare  clausum  f  regit ^  the  jury  ren- 
dered a  verdict  for  $90,  with  interest  thereon  from  the  date  of 
the  writ,  and  judgment  was  rendered  thereon,  it  was  held 
erroneous  for  the  interest  allowed,  but  the  plaintiff  was  per- 
mitted to  enter  a  remittitur  for  the  interest,  on  the  payment 
of  costs,  and  then  the  judgment  below  was  affirmed." 

And,  in  Oliio,  where  judgment  on  a  bill  was  entered  for  too 
large  a  sum  for  damages;  on  error,  the  plaintiff  was  allowed 
to  remit  the  excess  and  keep  his  judgment  on  payment  of 
costs.'" 

§  883.  And  when  a  verdict  and  judgment  were  rendered 
in  the  district  court  for  a  small  amount  over  and  above  the 
amount  claimed  in  the  petition,  and  the  plaintiff  after  discov- 

*'  Pierce  V.  Payne,  14  Cal.,  419.  See,  also,  Teag-arden  v.  Hatfield,  11  Ind., 
522.  See  opinion  of  Judge  Story  in  Blunt  v.  Little,  3  Mason,  102;  Armitag-e 
V.Haley,  4  Q.  B.,  917;  12  L.  J.,  Q.  B.,  323;  Diblin  v.  Murphy,  3  Sandf. 
(N.  Y.),  19,  as  to  tlie  right  of  the  court  below  to  enter  judgment  for  the  proper 
amount  after  remittance  of  excess. 

«^  Anderson  v.  Tarpley,  14  Miss.  (6  Sm.  &  Mar.),  507. 

«3  ConneUy  v.  McNeH,  2  Jones  (N.  C),  L.  51. 

64  Doty  V.  Rigour,  9  Ohio  St.,  519. 


SETTING  ASIDE  YEKDICTS.  697 


Eeducing  Verdicts— Excessive  Damages. 


eriuo-  the  error  endeavored  to  release  the  excess  by  an  indorse- 
ment  on  the  execution;  it  was  held,  not  such  a  cause  of  error 
as  justified  any  correction  by  the  appellate  court.°^ 

So,  where  the  verdict  is  for  a  greater  sum  than  the  ad  dam- 
num; and  in  all  cases  where  the  verdict  is  for  a  greater  amount 
than  is  claimed,  the  excess  should  be  remitted,  or  a  new  trial 
granted."  And  the  plaintiff  has  a  right  to  remit  any  excess 
of  the  amount  claimed,  and  upon  such  remittitur  he  will  be 
entitled  to  a  judgment  for  the  balance."  When  the  jury,  through 
a  mistake  or  otherwise,  find  more  than  the  plaintiff  claims, 
that  is  no  reason  for  setting  aside  the  verdict  and  granting  a 
new  trial,  if  the  plaintiff  will  remit  the  excess  and  take  a 
judgment  for  the  sum  to  which  he  is  entitled.**  So,  where  by 
reason  of  erroneous  instructions,  a  verdict  for  too  large  a  sum 
is  given,  the  defect  may  be  cured  by  a  remittitur^  if  the  excess 
can  be  clearly  ascertained  by  computation." 

65  Foster  v.  Van  Norman,  1  Tex.,  636.  See  Taylor  v.  HaU,  20  Tex.,  211, 
where  a  judgment  was  reformed  on  aremittitur.  Edmonson  v.  Yates,  25  Tex., 
373;  Harrison  v.  Allen,  2  Bing.,  4  (Eng.  C.  P.),  where  a  verdict  in  an  action 
for  slander  was  for  $600;  on  appeal  a  new  trial  was  ordered,  unless  the  plain- 
tiff would  stipulate  to  reduce  the  amount  to  $200.  Potter  v.  Thompson,  22 
Barb.,  87. 

^  ELfett  V.  Smith,  1  Minn.,  125;  Moore  v.  Republic,  1  Tex.,  563;  Gay  v. 
Raines.  21  Tex.,  460;  Lester  v.  French,  6  Wis.,  580. 

67  Griffin  v.  Weatherspoon,  8  Geo.,  113;  Hamby  v.  Hust,  22  Geo.,  312;  Dob- 
ensplick  v.  Armel,  11  Ind.,  31;  David  v.  Conrad,  1  G.  Greene,  (la.),  336;  Jones 
V.  Peoria,  13  La.  An.,  102;  Lewis  v.  Cook,  1  Har.  &  M.  (Md.),  159;  Pierce  v. 
Wood,  23  N.  H.,  519;  Campbell  v.  Hancock,  7  Humph.  (Tenn.),  75;  Garber 
V.  Moi-rison,  5  la.,  476;  Bridge  v.  Livingston,  11  la.,  57;  Hastings  v.  Johnson, 
Nev.,  190;  Atwood  v.  Gilaspie,  4  Mo.,  423. 

63  Steadman  v.  Simmons,  39  Geo.,  591. 

69  Cross  V.  Wilkins,  43  N.  H.,  332.  A  judgment  exceeding  the  ad  damnum 
is  erroneous;  but  the  Appellate  Court  in  Illinois  will  not  order  a  remittitur, 
but  remand  the  cause  to  give  the  plaintiff  an  opportunity  to  amend.  Pinck- 
ney  v.  Pulsife,  9  111.,  79.  And  it  has  been  held,  in  that  state  that  after 
judgment  was  rendered  and  the  court  adjourned,  an  error  of  excess  in  a  ver- 
dict cannot  be  cured  by  a  remittitur.  Rowan  v.  People,  18  III.,  159.  And 
a  subsequent  order  of  the  court  crediting  the  judgment  with  the  excess, 
cannot  have  the  same  legal  effect  as  a  remittitur  before  judgment.  Id.  See, 
also,  3  Graham  &  W.  on  New  Trials,  1162,  et  seg. 


698  THE  LAW  OF  DAMAGES. 

When  a  Remittur  will  not  Avail— Excessive  Verdicts  in  Other  Cases. 

§  884.  When  a  Remittitur  will  not  Avail. — In  case 
of  the  infringement  of  a  patent  for  a  sewing  machine,  where 
only  nominal  damages  were  claimed,  and  where  the  evidence 
showed  that  only  one  machine  had  been  sold  by  the  defendant, 
and  the  court  instructed  the  jury  that  if  they  found  for  the 
plaintiflf,  to  return  only  nominal  damages,  and  the  jury  brought 
in  a  verdict  of  $500  for  the  plaintitf,  it  was  held,  that  such  a  ver- 
dict was  excessive,  but  that  in  this  case  it  could  not  be  corrected 
by  allowing  the  plaintiff  to  remit  the  excess.'"  If  the  dam- 
ages rest  in  part  on  the  estimation  of  a  jury,  and  are  incapa- 
ble of  being  computed  by  any  fixed  measure,  the  court  cannot 
permit  the  plaintiff  to  remit  anything  by  way  of  excess,  and 
keep  his  verdict," 

§  885.  Excessive  Verdicts  in  other  Cases.— It  has 
been  held  in  California,  that  when  excessive  damages  have 
been  allowed  and  an  appeal  taken,  the  excess  may  be  remitted, 
and  the  judgment  thus  modified  will  be  permitted  to  stand  in 
the  appellate  court  on  payment  of  costs."  Even  where,  owing 
to  mis-directions  of  the  court,  the  verdict  is  excessive  the 
appellate  court  may,  on  remission  of  the  excess,  have  judgment 
entered  for  a  proper  sum."  But  the  practice  in  such  cases 
varies  in  different  states.  In  some  states,  as  we  have  seen, 
judgment  for  an  excessive  amount  will  not  be  reversed,  if  the 
appellee  enters  a  remittitur  of  the  excess."     And  a  remittitur 


70  Johnson  V.  Root,  2  CliflF.  (U.  S.  C.  C),  108. 

7'  Nudd  V.  Wells,  11  Wis.,  407;  Thomas  v.  Womack,  13  Tex.,  580.  See, 
also,  Christman  v.  Davenport,  21  Tex.,  483. 

7='Decosta  v.  Massachusetts,  17  Cal.,  613;  Fitzgerald  v.  Boulet,  13  La. 
Ann.,  116;  LeMotte  v.  Archer,  4  E.  D.  S.  (N.  Y.),  46;  Furry  v.  Stone,  1 
Yates  (Pa.),  186;  Hurd  v.  Germany,  8  Miss.  (7  How.),  675;  Harper  v,  Davis, 
9  Ired.  (N.  C),  L.,  44. 

73  Graham  v.  Keys,  29  Pa.  St.,  189.  See,  also,  Theanmaugh  v.  Hardman, 
4  Yerg.  (Tenn.),  565;  Hoges  v.  Hoges,  5  Met.  (Mass.),  205;  Sears  v.  Cono- 
ver,  3  Keys,  113;  Kinsey  v.  WaUace,  36  Cal.,  462. 

74  Hirsch  v.  Patterson,  23  Ark.,  112;  MuUer  v.  Boggs,  25  Cal.,  175;  Butler 
V.  Millett,  47  Me.,  492;  King  v.  Bemond,  25  Tex.,  637.     And  this  right  to 


SETTING  ASIDE  VEEDICTS.  699 


Setting  Aside  Verdicts  for  Inadequate  Damages. 


may  be  entered  in  the  trial  court,  after  a  motion  for  a  new 
trial  is  overruled."  But  in  others,  as  in  Wisconsin,  the  appel- 
late court  will  not  allow  a  part  of  the  damages  to  be  remitted 
in  a  case  of  tort,  and  affirm  the  judgment  as  to  the  remainder.'* 
So  in  Missouri,  where  the  action  was  on  a  contract,  it  was 
held,  that  a  remittitur  could  not  cure  a  verdict  where  the 
finding  was  based  upon  a  total  disregard  of  the  evidence  and 
the  law,  and  the  correct  amount  could  not  be  determined  by 
calculation,  or  from  the  facts  found  by  the  jury." 

§  886.  Setting  Aside  Verdicts  for  Inadequate  Dama- 
o.Qg^ — It  is  less  usual  for  the  court  to  interfere  with  the  find- 
in  o-  of  the  jury  for  inadequate  than  for  excessive  damages, 
though  it  has  power  so  to  do.''  The  statutes  of  some  of  the 
states  provide,  that  in  case  of  actions  for  personal  injuries,  or 
injuries  to  the  reputation,  the  courts  shall  not  set  aside  ver- 
dicts on  account  of  the  sraallness  of  the  amount  of  damages 
awarded  by  the  jury,  especially  where  the  damages  equal  the 
actual  pecuniary  injury,  but  in  other  cases  it  is  a  matter  in 
the  sound  discretion  of  the  court."  But  a  verdict  may  gen- 
erally be  set  aside  for  inadequacy  upon  the  same  grounds  that 
warrant  the  court  in  interfering  when  they  are  excessive.*' 

remit  is  almost  universally  allowed  where  the  proper  amount  can  be  ascer- 
tained, on  the  facts  found,  by  calculation.  See,  Sanbum  v.  Emerson,  12  N. 
H.,  58;  Pierce  v.  Wood,  23  Id.,  519;  Odlin  v.  Gove,  41  Id.,  464. 

75  Hahn  v.  Sweaza,  29  Mo.,  199. 

76  Potter  V.  Chicago  &  N.  W.  R.  Co.,  22  Wis.,  615  (1868).  See,  also,  Par- 
ker V.  Brown,  15  N.  H.,  176. 

77  Koeltz  V.  Bleekman,  46  Mo.,  320.  But  see,  Hoyt  v.  Reed,  16  Mc,  294, 
where  it  was  held  the  excess  might  be  remitted  to  avoid  a  new  trial;  and 
Hahn  V.  Sweaza,  29  Id..  199,  where  it  was  held  that  this  might  be 
done  even  after  a  motion  for  a  new  trial  is  overruled.  In  these  cases  the 
excess  was  ascertainable,  from  the  facts  found,  by  computation.  See,  also, 
Graham  &  W.  on  New  Trials,  452;  Hill.  onN.  T.,  436,  et  seg. 

78  Graham  &  W.  on  New  Trials,  448,  et  seg.;  Hill,  on  N.  T.,  439. 

79  Indiana  Civ.  Code,  §  §  352,  353;  Sharp  v.  O'Brien,  39  Ind.,  501;  Iowa 
Code,  1873.  §  2839;  Nebraska  Code,  §  315. 

»» McDonald  v.  Walter,  40  N.  T.,  551  (1870);  Emmons  v.  Sheldon,  26 
Wis.,  648  (1870);  Tutton  v.  Andrews,  Barnes,  448. 


700  THE  LAW  OF  DAMAGES. 


Setting  Aside  Verdicts  for  Inadequate  Damages. 


Thus,  in  England,  where  the  plaintiff  recovered  damages  in 
the  sum  of  one  farthing,  on  the  ground  of  the  negligence  of 
the  defendant's  servant,  in  driving  against  him,  by  which 
plaintiff's  thigh  was  broken,  and  considerable  expense  was 
incurred  for  medical  treatment,  the  court  ordered  a  new  trial, 
unless  the  defendant  would  consent  to  increase  the  verdict  by 
the  amount  of  the  surgeon's  bill." 

So,  in  a  recent  case  in  I^ew  York,  where  a  verdict  was  ren- 
dered for  the  plaintiff  for  $10,  in  an  action  for  injuries  sus- 
tained by  the  negligence  of  the  defendant  whereby  the  plaintiff 
sustained  severe  bruises  upon  his  face  and  one  of  his  teeth 
was  knocked  out;  it  was  held,  that  the  verdict  was  grossly 
inadequate,  and  that  the  plaintiff  was  entitled  to  a  new  trial 
on  the  payment  of  costs,  unless  the  defendant  should  consent 
to  a  material  increase  of  the  amount  of  damages  found  by  the 
jury.'' 

So,  where  the  action  is  for  a  debt,  and  the  verdict  is  less 
than  the  amount  due;*'  or  where,  in  trespass  or  trover,  the 
verdict  is  less  than  the  value  of  the  property  taken ;  or  for  a 
personal  injury,  and  the  verdict  is  less  than  the  expenses 
necessarily  incurred  and  paid  for  the  attendance  of  a  surgeon 
or  physician;  or  in  general,  where  the  verdict  is  clearly  inade- 
quate to  the  damages  sustained,  the  court  should  grant  a  new 
trial,  unless  the  defendant  consents  to  such  an  increase  of  the 
verdict  as  will  be  just  and  reasonable.*^ 

8'  Armytage  V.  Haley,  4  Q.  B.,  917;  D.  &  M.,  139;  7  Jur.,  671;  12  L.  J.  Q. 
B.,  323.  See,  also,  Flanders  v.  Meath,  27  Geo..  358;  Tedd  v.  Douglass,  5 
C.  B.  (N.  S.),  895;  Weeding  v.  Mason,  2  Id.,  382;  Cook  v.  feeal,  1  Ld.  R., 
176;  Brown  v.  Seymour,  1  Wils.,  5;  Austin  v.  Hilliers,  Hard.,  408. 

8»  Richards  v.  Sandford,  2  E.  D.  S.  (N.  Y.),  349. 

83  Hill,  on  N.  T.,  441,  §  28. 

84  Collins  V.  The  Albany  &  C.  R.  Co.,  12  Barb.  (N.  Y.),  492;  Protens  v. 
Hazel,  1  Harper,  332;  Tedd  v.  Douglas,  5  Jur.  (N.  S.),  1029;  Robinson  v. 
Hud.  Riv.  R.  Co.,  7  Bosw.  (N.  Y.),  1;  McDonald  v.  Walter,  40  N.  Y.,  551; 
Wilson  V.  Hicks,  26  L.  J.  Exch.,  242;  40  Eng.  L.  &  E.,  511.  But  if  the 
jury  fail  to  assess  the  amount  due,  the  court  is  not  authorized  to  ascertain 
Buch  amount  and  render  judgment  thereon.  Cates  v.  Nickell,  42  Mo.,  169 
(1868). 


SETTING  ASIDE  YERDICTS.  701 

Setting  Aside  Verdicts  for  Inadequate  Damages. 

In  a  recent  case  in  California,  where  the  "action  was  broiiojht 
to  recover  damages  from  the  defendant  for  causing,  by  his 
wrongful  act,  neglect  and  defiult,  the  death  of  the  plaintiffs 
intestate;"  a  verdict  and  judgment  for  two  hundred  dollars 
was  recovered.  A  motion  for  a  new  trial  was  sustained  and 
an  appeal  taken  therefrom.  The  Supreme  Court  on  the  appeal 
say:  "The  guilt  and  liability  of  the  defendant,  being  estab- 
lished by  the  verdict,  it  seemed  to  the  court  below,  'a  mockery 
of  justice  to  assess  such  an  insignificant  sum  as  a  just  and  fair 
compensation,  or  for  damages  resulting  from  the  reckless 
taking  of  human  life.'  A  new  trial  may  be  granted  when 
the  damages  are  too  small,  as  well  as  when  they  are  too  large." 
It  appears  from  the  record  in  the  above  case  that  the  plaintiffs 
intestate,  was  a  house  painter  and  paper  hanger  by  trade, 
about  fifty-six  or  fifty-seven  years  of  age,  industrious  and 
temperate;  that  he  found  employment  about  three-fourths  of 
the  time  during  the  year  and  made,  when  at  work,  from  four 
to  seven  dollars  per  day;  that  he  had  four  sons  and  one 
daughter,  all  of  whom  had  reached  the  age  of  majority,  ex- 
cept one,  and  he  was  ten  or  eleven  years  of  age  and  living  with, 
and  dependent  upon  his  father  for  support.  In  view  of  these 
facts  we  cannot  say  that  the  court  abused  its  discretion  in 
holding,  if  the  defendant  was  liable  at  all,  that  the  damages 
awarded  were  altogether  disproportionate  to  the  injury  re- 
ceived."" 

And  in  an  action  for  an  injury,  caused  by  firing  a  gun  loaded 
with  buck-shot  at  the  plaintiff,  which  nearly  took  off  one  of 
his  arms,  and  the  jury  gave  a  verdict  of  one  dollar;  on  motion 
for  a  new  trial,  the  court  reproved  the  jury  for  glaring  partial- 
ity and  injustice,  and  granted  the  motion." 

83  Hall  V.  Bark  Emily  Banning,  33  Cal.,  522;  McDonald  v.  "Walter,  40  N. 
Y.,551. 
8«  Mariani  v.  Daugherty,  46  Cal.,  26  (1873). 
8?  Bacoc  V.  Keith,  2  Bay,  466. 


702  THE  LAW  OF  DAMAGES. 

When  Courts  will  not  Set  Aside  Verdicts  for  Inadequacy. 

888.  When  Courts  will  not  Set  Aside  Verdicts  for 
InadeqUtacy. — The  courts  will  refuse  to  set  aside  verdicts  for 
inadequacy  of  the  amount,  when  there  is  no  reason  to  suppose 
the  jury  were  actuated  by  wrong  motives,  or  where  another 
verdict  would  probably  result  in  so  small  a  change  that  a  new 
trial  would  not  be  worth  while  in  view  of  the  additional  costs, 
or  where  substantial  justice  has  been  done/' 

§  889.  It  is  not  within  the  proper  scope  of  this  treatise, 
to  consider  generally  the  law  relating  to  new  trials.  For  a 
fuller  and  more  complete  understanding  of  the  subject  refer- 
ence may  be  had  to  treatises  especially  devoted  to  it.  We  con- 
clude our  treatment  of  the  subject  by  a  quotation  from  the  val- 
uable treatise  of  Graham  and  Waterman  on  ]^ew  Trials.  They 
say:  " From  the  preceding  cases  it  is  clear,  the  reason  for  hold- 
ing parties  so  tenaciously  to  the  damages  found  by  the  jury 
in  personal  torts,  is,  that  in  cases  of  this  class,  there  is  no  scale 
by  which  the  damages  are  to  be  graduated  with  certainty.  They 
admit  of  no  other  test  than  the  intelligence  of  a  jury,  gov- 
erned by  a  sense  of  justice.  It  is,  indeed,  one  of  the  principal 
causes  in  which  the  trial  by  jury  has  originated.  From  the 
prolific  fountain  of  litigation,  numerous  cases  must  daily 
spring  up,  calling  for  adjudication  for  alleged  injuries  accom- 
panied with  facts  and  circumstances  affording  no  definite  stand- 
ard by  which  these  alleged  wrongs  can  be  measured,  and  which, 
from  the  necessity  of  the  case,  must  be  judged  of  and  appre- 
ciated by  the  view  that  may  be  taken  of  them  by  impartial 
men.     To  the  jury  therefore  as  a  favorite  and  almost  sacred 

88  Howard  v.  Barnard,  11  C.  B.,  653;  Gibbs  v.  Tunal,  1  C.  B.,  640;  Rich- 
ards V.  Rose,  24  Eng.  L.  &  E.,  406.  See,  also,  Phillips  v.  Phillips,  34  N.  J. 
L.,  208;  Shoff  V.  WeUs,  1  Neb.,  168,  under  the  statute,  which  prohibits  a  new 
trial  in  certain  cases.  Burton  v.  Thompson,  2  Burr.,  664;  2  Graham  &  W. 
on  New  Trials,  448,  et  seq.;  3  Graham  &  W.  on  New  Trials,  1161,  etseq.; 
Callanan  v.  Shaw,  24  la.,  441;  Buddington  v.  Knowles,  30  Conn.,  26;  Cald- 
well V.  Roberts,  1  Dana,  355.  If  the  verdict  does  substantial  justice  a  new 
trial  will  not  be  granted.  Ford  v.  Ward,  26  Ark.,  36.  See,  also,  McClintock 
V.  Lary,  23  Ark.,  215;  Elam  v.  Badger,  23  111.,  498;  Calhoun  v.  O'Neal,  53 
111.,  354;  Boynton  v.  Phelps,  52  111.,  210;  Apps  v.  Day,  23  Eng.  L.  &  E.,  335. 


SETTING  ASIDE  YERDICTS.  703 


When  Courts  will  not  Set  Aside  "Verdicts  for  Inadequacy. 


tribunal  is  committed,  by  unanimous  consent,  the  exclusive 
task  of  examining  those  facts  and  circumstances,  and  valuing 
the  injury,  and  awarding  compensation  in  the  shape  of  dam- 
ages. The  law  that  confers  on  them  this  power,  and  exacts  of 
them  the  performance  of  the  solemn  trust,  favors  the  presump- 
tion that  they  are  actuated  by  pure  motives.  It,  therefore, 
makes  every  allowance  for  different  dispositions,  capacities, 
views  and  even  frailties,  in  the  examination  of  heterogeneous 
matters  of  facts,  where  no  criterion  can  be  supplied;  and  it  is 
not  until  the  result  of  the  deliberations  of  the  jury  appears  in 
a  form  calculated  to  shock  the  understanding,  and  impose  no 
dubious  conviction  of  their  prejudice  and  passion,  that  courts 
have  found  themselves  compelled  to  interpose. 

But  in  actions  where,  by  reason  of  the  agreement  of  the 
parties,  or  from  other  causes,  a  reasonably  certain  measure  of 
damages  is  afforded,  no  such  latitude  is  allowed  the  jury,  and 
the  court  will  look  into  the  circumstances,  and  grant  or  refuse 
a  new  trial,  or  correct  the  verdict  according  to  the  justice  of 
the  case.'"" 

89 1  Graham  &  Waterman  on  New  Trial,  pp.  452,  453. 


INDEX. 


A.CTION,  FOR  DAMAGES—  r^™ 

mode  of  enforcing •  •     „^ 

essential  elements  of ^^'    '^° 

instances  cited • ^^ 

civil  right  not  baiTed  by  criminal  prosecution lOT 

exemplary  damages  allowed  only  in  case  of  malice lUy 

always  allowed  in  actions  for  breach  ot  con- 
tract of  mari-iage _ HI)  431 

for  libel  or  slander,  what  may  be  shown  in  aggravation 67 

mitigation Ho 

117 
for  criminal  conversation || ' 

seduction r   ' 

breach  of  promise  of  marriage ji^ 

false  imprisonment j^y 

conversion  and  trespass :^^^ 

assault  and  battery '^-''^ 

AGREEMENTS,  damages  on  breach  of— (See  Contracts— Damages 
— Bonds — Bills  of  Exchange). 

ASSAULT  AND  BATTERY— (See  Injury— Damages— Torts)— 

circumstances  aifecting  damages •  • |'J 

duty  of  injured  party  to  protect  himself !» 

matters  in  aggravation  and  mitigation ^i 

motives  of  the  wrongdoer ^';^ 

exemplary  damages • ' o/ 

matters  in  mitigation • ^^y 

elements  of  damages jl^ 

aggravation ^i.^ 

mitigation •  • ' "  ^^.V  Joa 

character  of  parties *''J»  *' ^  ^^ 

ckcumstances,  res  gestae 4/4,  4^  / 

pecuniaiy  circumstances 4(5 

ATTACHMENT— (See  Bonds)— 

damages  on  bonds ^° 

BAILMENTS— (See  Damages— Contracts)— 

general  principles  of ^^^ 

different  classes ^y° 

deposituin ^|^ 


mandatum 
commodatum 


313 


pigniis  or  pledging g|^ 

what  a  pledge,  may  recover ^|'J 

locatlo,  or  hearing  for  reward ^1^ 

45 


706  INDEX. 

BAILMENTS— (See  Damages— Contracts)— Continued—  page 

where  the  bailee  is  to  bestow  care  or  labor 316 

warehouse-men 317 

inn-keepers  . . 312 

common  carriers — insurers 318 

rule  not  applied  to  live  stock 319 

interruption  of  navigation • 319 

where  the  negligence  or  the  carrier  co-operates  with  the  natural 

cause • 320 

doctrine  of  contributoiy  negligence — application 321 

non-delivery — measure  of  damages 322 

delay  in  delivery 323 

liability  beyond  the  terminus 324 

market  value 327 

partial  loss,  or  injury 328 

sale  of  the  goods 329 

interest  as  damages •_ 329 

where  the  carrier  refuses  to  receive  and  transport  according  to 

contract 329 

delay  in  the  delivery  or  injury  to  goods  no  ground  for  refusal  to 

accept 332 

failure  to  deliver  machinery,  etc.,  Hadley  v.  Baxendale 332 

damages  in  such  cases 333 

where  the  goods  have  been  sold  at  a  price  fixed  and  to  be  deliv- 
ered at  a  particular  time  and  place ;•••;•  ^^'^ 

goods  must  be  delivered  in  a  reasonable  time  where  the  time  is 

not  stipulated _• 335 

when  the  general  and  limited  rule  prevails 336 

larger  rule  prevails 336 

agreement  to  furnish  cargo  or  freight 237 

measure  of  damages  on  a  breach  of  contract  in  such  cases 337 

notice  of  the  amval  of  goods — damages  for  a  failure  of 338 

refusal  to  deliver — damages  in  case  of 339 

contracts  limiting  liability 339 

injury  to  passengers ; 340 

reasons  for  the  difference  in  liability  between  merchandise  and 

passengers 341 

delay  of  passengers — damages 342 

injury  resulting  in  death 343 

contributory  negligence 344 

responsibility  for  baggage 344 

exemplary  damages 345 

contracts  limiting  liability  for  baggage 345 

BILLS  OF  EXCHANGE— 

statutory  provisions  for  damages  on  non-payment  of 14 

civil  code  of  Louisiana 14 

California 15 

principal  and  interest  is  the  general  rule 28 

compensation — maxim  causa  proxima 42 

actual  compensation,  the  rule 191 

liabiUty  fixed 191 

interest  as  damages — civil  law 192 

interest  at  the  place  of  payment _ _•  195 

indorsement  in  one  state,  payment  in  another  where  interest  is 

less  where  contract  is  made  than  where  payable 196 

statutes  of  different  states. 196 

money  generally  means  coin 199 

legal  tender  acts — construed 200 

applied  to  antecedent  debts • 201 

agreements  to  pay  in  coin,  etc 201 


I  INDEX.  707 

BILLS  OF  EXCHANGE— Continued—  page 

doctrine  established 205 

interest  stipulated  at  a  particular  place 206 

action  in  one  state  on  contract  payable  in  another  state . .  206 

liability  of  maker  for  difference  in  exchange 208 

protest,  expenses  of 208 

indorsee  against  indorser  or  surety 209 

assignment  of  non-negotiable  paper,  insolvency  of  maker 209 

fraud  in  transfer— genuineness  of  signature  warranted 209 

action  against  assignor,  fraudulent  indorsement  loy  minor 219 

accommodation  paper  held  as  pledge 210 

notes  payable  in  specific  articles,  how  construed 210 

holder  of,  entitled  to  recovery  from  ail  parties 212 

debt  payable  in  one  country  and  sued  in  another  » 212 

damages  recoverable  on  bills  dishonored,  n  statutes 213 

where  defendant  fails  to  accept,  for  accommodation  of  plaintiff. .  214 

acceptor  liable  for,  what 216 

drawer  liable  for  re-exchange 217 

indorsee  and  acceptor  cannot  recover  costs  of  maker 219 

fixed  sum  fis  damages  on  protest 220 

lex  loci  contractus  generally  governs 221 

ordinances  of  Confederate  States  construed 223 

scaling  laws  of  Virginia 229 

BONDS— 

damages  on,  generally 435 

when  limited  to  penalty 436 

consequential  and  remote  damages 4,37 

common  law  practice 438 

statutory — attachment 438 

mitigation 441 

injunction,  damages  on 442 

delivery 44.5 

indemnifying 44.5 

other  bonds 445 

BREACHES  OF  CONTRACTS— (See  Contkacts,  Contracts  and  Cov- 
enants— Damages) — 

BRITTON  V.  TURNER,  doctrine  of 298—299 

CARLISLE  TABLES,  value  of  life  estate  may  be  estimated  by 339 

expectation  of  life  may  be  shown  by 503 

value  of  an  annuity  may  be  determined  by 506 

CHARACTER— (See  Torts— Mitigation— Damages)— 

general  suspicions,  etc.,  in  action  of  slander II4 

_  bad  character  of  the  plaintiff  may  be  shown  in  slander.  115,  116 

of  plaintiff  in  actions  for  seduction 1]8  119 

false  imprisonment 120,  121 

bad — in  actions  for  personal  injuries 128,  473 

moral  guilt  in  action  for  malicious  prosecution 129 

bad,  in  respect  to  charges  made  in 545  545 

of  the  plaintiff  and  defendant  in  actions  for  injuries .'  473 

bad,  general  knowledge  of— when  shown  in  an  action  for  a  per- 
sonal injury 477 

CRIMINAL  CONVERSATION— (See  Seduction)— 

COMMODATUM— (See  Bailments)— 


708  INDEX. 

COMMON  CARRIERS— (See  Bailments— Damages— Contracts)—  paob 

generally  insurers  of  merchandise 318 

rule  not  applied  to  live  stock 319 

effect  of  interruption  of  navigation 319 

where  negligence  co-operates  with  the  natural  cause,  etc 320 

doctrine  of  contributory  negligence 321 

damages  for  non- delivery 322 

delay 323 

effect  of  market  value 327 

liability  beyond  the  terminus 324 

damages  in  case  of  partial  loss 328 

sale  of  goods 329 

interest  as 329 

for  breach  of  contract  to  transport 329,  331 

in  case  of  delay  of  machinery 332,  336 

as  affected  by  knowledge 336 

Imiited  rule 336 

larger  rule 336 

agreement  to  furnish  freight 337 

on  failure  to  give  notice  to  the  consignee 348 

refusal  to  deliver 339 

contracts  limiting 339,  345 

for  injury  to  passengers 341 

delay  of  passengers '342 

injuries  resulting  in  death 343,  490,  516 

effect  of  contributoiy  negligence 344 

for  baggage 344 

exemplaiy 345 

are  telegraph  companies  ? 347,  362 

COMPENSATION",  is  the  general  principle  recognized  in  the  measure 

of  damages 28 

as  affected  Dy  the  maxim  causa  proxitna,  etc 42,  43 

application  of  the  maxim  to  breaches  of  contracts  for  the  payment 

of  money 43 

in  case  of  failure  to  deUver  property 44 

not  always  limited  to  the  proximate  or  natural  consequences  in 

torts ". 44 

natural  and  direct  consequences  explained 44,  45 

in  case  of  injury  from  negligent  fire 46,  47,  48 

conflict  of  decisions 49 

where  damages  were  held  to  be  too  remote 50,  51 

a  larger  rule  of   liability  in  case  of  officious  interference 

witli  the  property  of  others 52,  53 

in  case  of  gross  negligence  and  willful  wrongs 53,  54 

fraud  generally 54,  55 

fraudulent  breaches  of  contract 57,  58 

breaches  under  circumstances  of  aggravation.  ..58,  59,  60 

views  of  Mr.  Chitty 61 

Mr.  Sedgwick 62 

distinction  between  tort  and  contract  as  to 62 

doctrine  of  the  common  law,  artificial  and  technical 62 

statutory  reform 62,  63 

CONSEQUENCES— (See,  Damages— In  jury)— 

when  liability  not  confined  to  proximate  or  natural 44 

CONTRACTS,  damages  on —(See  Damages— Bailments — Telegraph 
Companies — Compensation) — 

policy  of  statutory  regulation  of 12 

statutory  provisions  for  on  contract 14 


INDEX.  709 

CONTRACTS,  damages  on — Continued —  page 

stipulations  for  (See  Liquidated  Damages).  .  136 

stipulations  for  in  contracts 21,  136,  156 

on  contracts  affected  by  fraud 55,     56 

for  fraudulent  breaches  of 57,    58 

breaches    under   circumstances  of  aggrava- 

timi.. 58,    61 

distinction  between  and  tort,  as  to  motives  . .     62 

doctrines  of  the  common  law,  technical 62 

statutory  reform  in  respect  to  actions  on 62 

for  the  non-payment  of  money 

breaches,  compensation,  the  general  rule 191 

interest  as,  for  non-payment  of  money 192 

recoverable  on  promissory  notes 193 

interest  at  place  of  payment 195 

in  different  states 197 

money  generally  means  coin 199 

under  the  legal  tender  acts 200 

for  money,  eflfect  of  legal  tender  acts  constitutional 201 

legal  tender  acts  apply  to  antecedent  debts 201 

to  pay  gold  or  silver  coin — early  decisions  under  legal  tender. . 

acts 201,  202 

final  decisions  of  the  Supreme  Court  of  the  U.  S 202,  203 

to  pay  in  EngUsh  golden  guineas 203 

pure  gold — in  coined  money 273 

specie 203 

a  particular  kind  of  money 204 

for  the  payment  of  money — deductions  from  the  decisions  relating 

to  the  measm-e  of  damages 205 

of  affreightment,  payable  in  sterling  money 205 

as  to  interest,  (see  Interest) 206 

exchange  as  an  element  of  damages  on  a  breach 207 

protest 208 

of  indorser  or  surety — indorsees'  damages 209 

fraud  in  transfer — genuineness  of  signatures  wan-anted 209 

notes  payable  in  specific  articles 210,  21 1 

bills  of  exchange — damages  on  generally 212,  213 

statutory  provisions  as  to  damages  on 213 

of  acceptor— damages  on 215 

drawer 216 

indorser 219 

damages  on  protest — arguments  for  fixed  sum 220 

liability  of  parties  to  negotiable  instruments  governed  by  the  lex 

loci  contractus 221 

for   payment  of   money,  damages  on,    as   affected  by  scaling 

laws 22  ,  230 

for  sale  and  deliveri/  of  personal  property 231,  284 

damages  on  seller's  breach  where  the  price  is  not  paid 232 

has  been  advanced. . .  233 

reasons  for  highest  value  where  the  price  is  advanced  235 

a  fixed  rule  where  the  price  is  not  paid. .  236 

when  the  larger  rule  obtains 236 

application  of   the  doctrine  in  Hadley  v.  Baxen- 

dale 236,  237 

Enghsh  cases 238,  239 

American  cases 240,  241 

non-delivery  of  stocks 243 

distinction  between  stocks  and  other  property 243 

none  on  principle 244 

rule  the  same  as  in  cases  of  other  property 244,  245 


710  INDEX. 

CONTRACTS,  damages  on— Continued—  page 

as  to  the  time  and  place  of  delivery 246 

distinction  between  a  sale  and  a  promise  to  deliver 

in  payment  of  a  debt 247 

form  of  action  as  afFectinof _ 247 

in  actions  by  the  vendee  ior  failure  to  deliver 246 

market  value 248, 249,  250 

rule  same  as  conversion 251 ,  252 

in  case  of  part  performance 262,  253 

new  departure 254,  255 

in    case  of  warranty  and    fraudulent    representa- 
tions  256,  261 

more  extended  in  certain  cases 261,  264 

as  affected  by  the  price  paid — former  doctrine. .  .265,  266 

rule  in  Iowa 265,  266 

New  York 267 

lllmois 268 

general  rule,  reasons  for 568,  269 

of  market  value,  not  applied  to  paint- 
ings and  statuary 269 

in  case  of  fraud— rescission  of,  when  allowed 270 

damages    for    fraudulent  representations  of  value  of   property 

sold. 271,  273 

of  the  right  to  rescind  for  breach  of  warranty 273,  278 

damages  in  case  of  recission 273,  278 

of  purchase— failure  of  the  purchaser  to  comply— damages .  .278,  282 

warranty  of  title  to  personal  property 283 

damages  on  failure  of 283,  284 

For  Services— Damages— [See  Damages  ) 285,  306 

on  breach  by  employer 285,  286 

by  employee 286,  287 

in  case  of  part  performance  by  the  party  lured 288,  289 

former  doctrine  of  entire  contract 289 

relaxed 289 

in  New  York 290 

Massachusetts 291 

middle  ground  in  Vermont 292 

more  liberal  rule  in  N^w  Hampshire,  Britton  v.  Turner 293,  295 

tendency  of  the  decisions  in  harmony  with  Britton  v.  Turner 296 

doctrine  in  Iowa 296,  297 

Michigan 298 

Wisconsin 298 

Indiana 298 

Illinois 298 

Pennsylvania 298 

Maine 298 

Texas 298 

Tennessee 2^8 

Missouri 298 

New  York  298 

other  states _ 2j8 

integrity  of  the  contract  maintained 298 

construction  of  the  contract 299 

rule  in  Missouri i-"  ", 

Louisiana,  where  work  is  accepted  but  is  not  according  to 

the  contract •  •  •  •  ^^O 

measure  of  in  such  cases _ 300>  301 

where  the  employer  refuses  to  accept  services bOl,  302 

duty  of  the  employe  to  seek  other  employment 303 

use  reasonable  means  to  present  loss 304 


INDEX.  711 

CONTRACTS,  damages  on — Continued —  page 

in  case  of  deviation  by  consent 305 

conclusions 305,  306 

CONTRACTS  AND  COVENANTS— cZama.<7es  on  breach  of— 

general  principles 366 

seizin — rule 368 

authority  to  convey 368 

Carlisle  tables 369 

where  there  is  no  seizin  in  the  grantor 371 

English  rule. 372 

American  doctrine 372 

partial  breach 374 

against  incumbrances 374 

nominal   when 375 

when  they  cannot  be  removed 377 

when  removed  by  the  covenantee 377 

when  he  receives  money  to  remove 379 

maximum  amount  recoverable 379 

for  quiet  enjojonent  and  warranty 383 

consideration  and  interest 384 

value  at  the  time  of  the  eviction 385 

arguments  for  the  general  i-ule 386 

in  support  of  the  rule    of  in- 
creased value 338 

views  of  the  author 389 

interest  as  damages 391 

costs  and  counsel  fees 394 

covenant  of  quiet  enjoyment  and  wan-anty— partial  eviction 394 

where  the  vendor  purchases  the  superior  title 396 

damages  on  breach  of  contracts  relating  to  land 398 

by  vendor 398 

where  vendor  acts  in  good  faith 399 

general  doctrine 401 

bad  faith 403 

application  of  principles  of  Hadley  v.  Baxendale 409 

delay  in  the  performance 412 

in  case  of  partial  breach 412 

rule  m  special  cases 413 

where  the  title  is  in  another 418 

a  party  assumes  to  act  as  agent 418 

the  vendee  fails 418 

the  gi-antor  tenders  a  deed 419 

when  recission  allowed 419 

purchaser  has  given  notes 419 

false  representation  and  warranty 420 

fraud 421 

in  case  of  lease 422 

for  withholding  possession 423 

in  case  of  eviction  of  the  tenant 423 

agreement  to  repair 425 

CONTRACTS  OF  MARRIAGE— (See  Breach  of  Promise)— 

damages  on  breach  of 430 

in  the  discretion  of  the  jury 430 

should  indemnify 430 

exemplary  always  allowable 431 

what  constitutes  no  defense  to 431 

matters  in  aggravation  of 432 

mitigation  of 434 


712  INDEX. 

CONTRACTS— MISCELLANEOUS—                                                  _  page 

common  statutory  and  other  bonds 435,  446 

of  insurance,  damage  on 447,  4G9 

CONTRIBUTORY   NEGLIGENCE-(See   Negligence— Injury— Dam- 
ages)— 

defeats  recovery  for  an  injury 21 

the  plaintiff  can  derive  no  benefit  from  his  own  wrong 158 

application  of  the  maxim  in  case  of  negligence 158,  159 

where  the  injury  is  aggravated  by  the  want  of  plaintiff 's  subse- 
quent   care 160 

defendant  could  have  avoided  the  result  of  plaintiff 's 

negligence 161 

negUgence  of  each,  is  the  proximate  cause  of  the  injury  162 

the  plaintiff  is  remote 163 

instances  of  the  application  of  the  principle 164,  165 

cases  of 166 

per  se 167,  168 

instructions  relating  to — erroneous 168,  169 

correct 169 

must  amount  to  want  of  ordinary  care 170 

in  case  of  fire  caused  by  negligence 170 

a  boy  in  a  cordage  factory 171 

not  imputed  in  the  act  of  saving  life 171 

in  case  of,  damages  cannot  be  apportioned 172 

limits  of  the  rule,  concurring  acts 172,  173 

effect  of  knowledge  by  servants  of  the  hazards  of  the  business,  in 

wliich  they  are  engaged ._ 174,  175 

applied  to  servants  injured  by  other  servants,  in  same  employ- 
ment   176,  177 

whether  the  question  is  one  of  law  or  fact 176,  181 

in  general  the  question  for  the  jury 181 

burden  of  proof  of • 182 

presumptions  from  instinct  of  self-preservation 183 

doctrine  not  applicable  to  infants  of  tender  years 183,  184 

persons  incapable  of  judgment 184 

of  parent  or  guardian,  no  defense  to  action  by  an  infant 185,  186 

where  the  action  is  brought  for  his  benefit 186,  187 

question  for  the  jury 188 

doctrine  of,  applicable  to  intoxicated  persons 188 

qualified  doctrine  applicable  to  blind  persons 188 

not  applicable  to  persons  non  compos  mentis. . . .  189 

in  case  of  injuries  resulting  in  death 516 

from  sale  of  intoxicating  liquor 677 

COPY-RIGHTS— 581,  588 

provision  of  the  Constitution 681 

power  of  Congress 581 

damages — books,  etc 582 

maps,  charts,  etc_. ._ 582 

dramatic  compositions 583 

remedies  for  infringement  of 583 

literary  piracy 584 

CORPORATIONS— (See  Common  Carriers— Contributory  Negli- 
gence— Telegraphs) — 

mtmicipal — non  exercise  of  power  by 32 

negligence — sanitary  regulations 32 

injury  by  reason  of  grading  streets 34,    40 

exception  to  ruLe  in  Ohio, 41 


I]S"DEX.  713 

CORPORATIONS— Continued—  page 

cannot  be  liable  to  exemplary  damages 86 

private — may  be  liable  to  exemplary  damages,  when 92,  109 

liability  in  case  of  gross  negligence 94,  98 

other  cases  of  negligence 521,  537 

COVENANTS— (See  Contracts  and  Covenants  —  Bonds— Dam- 
ages)— 

DAMAGES— (See  Damages— Contracts  and  Covenants— Injury)- 

definition  of  the  term 2 

maxims  of  the  law  of 2,  7,  9 

mode  of  enforcement  of • 3 

origin  of,  much  of  the  law  of 3 

rules — inadequacy  of • 5,  27 

arbitrary— do  not  secure  indemnity 6 

the  most  common,  defective 6 

the  maxim  causa  proxima,  et  non  remota  spectatur  7 

illustration  of 28,  52 

Eolicy  of  limitation  of  liability 8 

ne  of  limitation  difficult. 10 

common  law  forms  of  action — effect  of 11 

statutory  regulations— policy  of 12 

Anglo-Saxon  and  Jewish  law 13 

statutoiy  provisions  relating  to 14 

circumstances  affecting  amount  of,  and  right  to  recover 15 

injured  party — duty  of  to  protect  himself 19 

liquidation  of — stijiulations 21 ,  136 

aggravation  and  mitigation  of 21,  64,  112 

where  a  party  contributes  to  his  injury 21 

as  affected  by  the  motives  of  the  wrongdoer 22 

in  case  of  malicious  and  aggravated  torts — controversy 22 

law  and  fact — doctrine  as  to 24 

illustrations 25 

power  of  the  court  to  control 27 

rules — artificial  and  arbitrary 27 

elements,  principles,  and  rules  of 28,  30 

plaintiff— right  or  interest  of  as  affecting 31 

essential  element  of  an  action  for 31 

damnum  absque  injuria,  instances  of 32,  38 

injuria  and  damnum,  terms  defined 38 

compensation — the  general  principle :   42 

maxim  causa  proxima,  etc.,  considered 42 

applied  in  cases  of  breaches  of  contracts  43 

failure  to  dehver  property ; 44 

not  always  limited  to  proximate  or  natural  consequences,  in  cases 

of  torts 44 

natural  and  direct  consequences,  explained 44 

injury  from  fire — negligence 46 

decisions — conflict  of 49 

in  case  of  malicious  interference  with  property  of  others. .......  52 

gross  neghgence  and  willful 

wi'ongs 53 

fraud  generally 55 

breaches  of  contract,  fraudulent 57 

under  circumstances  of  aggravation  ...._. 58 

exemplary — gross  negligence,  fraud,  outrage  and  insult 64 

conflicting  views  of  Greenleaf  and  Sedgwick 65 

doctrine  where  recognized 67 

when  qualified 69 

and  compensatory  considered 70 


714  INDEX. 

DAMAGES— Continued—  page 

exemplaiy— views  of  Mr.  Rutherford 74 

intent  of  wrongdoer,  an  important  element 82 

not  applicable  to  infants  and 

non-compotes 85 

not  applicable  to  corporations.  86 

English  cases  relating  to 86 

American  cases  relating  to 88 

general  rule — in  cases  of  negligence 90 

liability  of  principal  for  acts  of  agents  92 
depends  on  culpability  of  the 

principal 94 

degrees  of  gross  negligence  illustrated  99 

when  wrongdoer  criminally  prosecuted  105 

effect  of  in  mitigation 107,  108 

where  they  have  been  refused 108 

in  case  of  breach  of  promise  of  mar- 
riage  110,  119 

mitigation — circumstances  in,  generally 112 

in  libel  and  slander 113 

general  suspicion 114 

general  bad  character  of  plaintiff 115,  128 

want  of  malice  of  defendant 116 

in  criminal  conversation 117 

in  seduction 117 

what  may  be  shown 118 

breach  of  promise  of  marriage 119 

what  may  not  be  shown 118 

false  imprisonment 120 

conversion  and  trespass 121 

good  or  bad  faith — effect  of 122 

tx'espass  and  trover — distinction 124 

assault  and  battery 125 

pecuniary  circumstances  of  defendant 127 

mdictment,  conviction  or  fine,  effect  of 128 

malicious  prosecution 129 

moral  guilt,  effect  of 129 

duty  of  plaintiff  to  prevent  injury 130 

statement  of  the  rule,  application 130 

where  the  injury  is  aggravated  by  plaintiff 132 

instances  of  neglect  of  reasonable  means  to  prevent 

loss 133 

where  plaintiff  may  recover  notwithstanding  his  neg- 
ligence   134 

application  to  contracts  for  services 135 

effect  of  stipulations  in  reference  to 136 

liquidated  damages 136 

penalty  or  liquidated  damages — construction . . .  137 
where  sum  designated  treated  as  penalty. .  .148, 

138,  139 

as  liquidated  damages 148 

where  price  of  property  is  fixed 149 

cannot  exceed  liquidated  sum 150 

generally  the  penalty 150 

where  amount  due  is  certain 153 

parties  cannot  evade  usury  laws 153 

propositions  deducible  from  decisions 153 

rules  of  construction 154 

contributory  negligence — ett'ect  of 157 

plaintiff  can  derive  no  benefit  from  his  own  wrong 158 


INDEX.  71S 

DAMAGES— Continued—  page 

application  in  case  of  negligence 158 

where  injury  aggravated  by  want  of  subsequent  care 160 

where  plaintiff  could  have  avoided  result  of  plaintiff 's  negligence  161 

instances  of  application  of  the  principle 164 

cases  of  contributory  negligence 166 

negligence  per  se 167 

erroneous  and  con-ect  instructions  to  jury 168 

ordinaiy  care 170 

fire  caused  by  negligence 170 

other  instances  of  negligence 171 

negUgence  not  imputed  in  acts  to  save  Hfe 171 

where  injury  cannot  be  apportioned 172 

limits  of  I'ule  in  cases  of  contributory  negligence 172 

knowledge  by  servants  of  defects  causing  their  injury 174 

whether  question  is  one  of  law  or  fact 177 

question  in  general,  one  for  the  jury 181 

burden  of  proof 182 

presumption  from  instinct  of  self  preservation 183 

where  injured  person  is  a  child 183 

where  infant  is  incapable  of  judgment 184 

negligence  of  parent  or  guardian  no  defense  to  action  by  infant. .  185 

distinction  where  the  action  is  by  the  parent 186 

not  affected  by  the  intoxication  of  the  injured  party 188 

blind  persons — rule  applied  to  them 188 

persons  non  compos  mentis — rule 189 

contracts  for  non-pa'jment  of  money 190 

actual  compensation  the  rule 191 

interest  as  damages — civil  law 192 

promissory  notes 193 

interest  at  place  of  payment 195 

in  different  states 196 

money  means  coin 199 

legal  tender  acts — constitutional 200 

applied  to  antecedent  debts 201 

agreement  to  pay  in  coin 201 

propositions  deducible  from  decisions 205 

contract  of  affreightment — sterling  money 205 

when  interest  stipulated  for  at  particular  place 206 

exchange 207 

protest 208 

indorsee  against  indorser  or  surety 209 

fraud  in  transfer — genuineness  of  signature 209 

notes  payable  in  specific  articles 210 

hills  of  exchange — damages  generally 212 

arguments  for  a  fixed  sum  as  damages  on  protest 220 

as  to  liability  of  the  parties  the  lex  loci  contractus  governs  generally,  221 

scaUng  laws  of  Confederate  States 222 

North  Carolina 222 

Alabama  and  Georgia 226 

Virginia 228 

contracts  for  sale  and  delivery  of  personal  property 231 

seller's  breach 232 

where  price  is  not  paid  in  advance 232 

paid  in  advance 233 

reason  for  the  highest  price  as  inile  of  damages 235 

fixed  rule  of  damages 236 

when  a  larger  rule  obtains 236 

doctrine  of  Hadley  v.  Baxendale 236 

general  application  of  the  rule 238 


716  INDEX. 

DAMAGES— Continued—  page 

English  cases  in  which  the  rule  is  illustrated 238 

American  240 

for  non-delivery  of  stocks 243 

distinction  between  stocks  and  other  property. . .  243 

uniform  rule  in  New  York 244 

different  in  Pennsylvania 244 

no  distinction  on  principle    244 

time  and  place  of  deliveiy 246 

distinction  between  a  sale  and  a  promise  to  deliver  in  payment  of 

debt 247 

form  of  action  as  affecting  damage 247 

where  property  has  decreased  in  value 247 

market  value 248 

rule  same  in  torts  as  on  contracts 251 

part  performance  of 2.52 

the  new  departure 254 

warranty  and  fraudulent  representations 256 

liability  for  more  damages  in  certain  cases 261 

price  paid  as  affecting  the  measure  of  damages — former  doctrine,  265 

governs  in  Illinois 268 

reasons  for  the  general  rule 268 

general  exceptions  to  the  rule 269 

fraud — rescission 270 

damages  in  case  of 271 

the  right  to  rescind  in  case  of  breach  of  warranty 273 

failure  of  purchaser  to  comply 278 

waiTanty  of  title — personal  property 283 

failure  of  title — measure  of  damages 283 

contracts  for  services — specific  acts — material 285 

breach  by  the  employer 285 

employe  286 

part  performance  by  the  party  hired 288 

the  doctrine  of  entire  contract  relaxed 289 

American  cases  where  the  stem  rule  was  followed 290 

middle  ground 292 

the  liberal  rule  in  such  cases — Britton  v.  Turner 293 

tendency  of  the  decisions  in  harmony  with 296 

states  where  the  doctrine  has  been  recognized 298 

constniction  of  the  contract 299 

application  of  the  rule 299 

damages  where  the  work  is  accepted 300 

method  of  computing  damages  in  such  cases 300 

refusal  of  employer  to  accept  of  services 301 

duty  of  the  discharged  party  to  seek  other  employment 303 

under  the  code  of  Louisiana 304 

duty  of  a  party  to  use  reasonable  means  to  prevent  loss 304 

deviation  by  consent 305 

conclusions 305 

on  contracts  with  bailees  generally,  depositum 311 

mandatum 312 

comtnodatum 313 

pig  mis  or  pledging 313,  314,  315 

?oca<iO  or  hiring  for  reward.  ..315,  316 
where  the  bailee  is  to  bestow  care 

or  labor 316 

warehousmen 317 

innkeepers _•  •  318 

with  carriers,  damages  in  case  of  loss  or  injury  to  merchandise  318 

live  stock. . .  319 


mDEX.  •     '  717 

D \MAGES— Continued—  .  ^.  ^         ■•       r       •  „^,-^^   ^qTq 

contracts  with  carriers,  damages  m  case  of  interraption  of  nayigation     ^19 

where  negligence  of  the  earner  co-op- 
erates with  the  natural  cause  of  the 

injury g^Y 

contributory  neghgence oil 

for  non-delivery '^22 

delay  in ; y,^^ 

liability  for  beyond  the  terminus o^4 

market  value .-  •; ^^^ 

in  case  of  partial  loss  or  injury rf^» 

sale  of  the  goods o/y 


interest  as 


329 


where  the  carrier  refuses  to  receive 

and  transports  according  to  contract  o29 
for  failure  to  deliver  machineiy,  etc., 

Hadleif  v.  Baxendale gg^ 

what  they  may  include  on  failure  to  dehver. . .  666 
for  delay  in  the  delivery  or  injury  to  the  goods 

when  no  ground  ior  refusal  to  accept. .  • 66i 

when  the  general  and  limited  rule  prevads ....  odb 

larger  i-ule  prevails • .  ; .    • y;^ 

on  agreements  to  furnish  cargo  or  freight o6i 

failure  to  give  notice  of  the  arrival rfoS 

refusal  to  deliver.  •.••••• %^ 

contracts  limiting  liabihty 66^ 

for  injury  to  passengers. ^4^ 

HabiUty  for  merchandise  and  passengers,  reasons  ^ 

for  difterence  between ^1 

for  delay  of  passengers ^^ 

injury  resulting  m  death. g^o 

in  cases  of  contributoiy  neghgence o44 

on  account  of  baggage g44 

exemplaiy— (See  Exemplary  Damages) rf4.D 

contracts  limiting. .  •  • • '^J^ 

contracts  tvith  telegraph  companks-{iiee  Telegraphs) gb 

for  mistake  in  order  for  salt. qri 

bouquets y"^^ 

a  shawl ^^^ 

sale  of  stock ^^^ 

wheat.  g9^ 

doctrine  of  Hadley  v.  Baxendale  applied. •••••••••  r\ oro 

in  case  of  delay  of  message  ordering  property  attached 3| 

ordering  lepines  sold g-g 

where  limited  to  interest • •  • o'-r 

liability  tor  those  that  naturally  result. ^^o 

were  contemplated -^ou 

limitation  of  liability  for,  by  contract  ... ...  •  •  • ^^' 

not  liable  for  as  insurers,  may  limit  liabdity  for 6^ 

for  omission  to  send  a  message ogQ 

where  there  are  connecting  lines ' 

party  to  whom  message  is  sent  may  recover dbi 

conclusions  with  reference  to •  •  •  V ' '  *  * '  * '  *  * ; qgc 

contracts  in  reference  to  real  pronert,, -{See  Covenants) 365 

on  breaches  of  contracts  and  covenants ^»^,  ^-^ 

to  marry |^Y'  JY^ 

common  statutory  and  other  bonds 4oO,  |4D 

policies  of  insurance ,-q'  ^g 

for  injuries  to  the  person .q^'  .,g 

resulting  m  death  *y^'  ^^^ 


718  .  INDEX. 

DAMAGES — Continued —  page 

for  injuries  resulting  from  negligence  and  gross  negligence. .  517,  537 

false  imprisonment 538,  542 

malicious  prosecution 543,  548 

libel  and  slander  ... 549,  555 

seduction  and  crim  con 556,  564 

fraud  and  deceit 564,  573 

infringement  of  patent  right 574,  580 

copyright 581 ,  584 

trade-marlcs 584,  588 

injuries  to  property — trespass 589,  606 

by  public  officers 607,  618 

to  personal  property 619,  625 

trover  and  conversion 626,  657 

in  replevin 658,  666 

under  various  statutes 667,  678 

nominal _. 679.  682 

setting  aside  verdicts  for  excessiveness  or  inadequacy  of 683,  703 

for  deaths — common  law  doctrine 490 

English  legislation 492 

New  York  statutes  493 

statutes  of  various  states 493,  501 

construction  of 498,  501 

actual — not  exemplary 498,  501 

Hmited  by  statutes 502,  503 

what  competent  to  show 503 

expectation  of  life 503 

instances 504 

legal  right  to  benefit  not  essential 505 

value  of  an  annuity — Carlisle  Tables 506 

statutes  have  no  extra-territorial  effect 506 

widow — children 507 

wealth  of  the  defendant 507 

death  of  a  child— limitation 507 

in  pari  delicto 508 

French  law — duel 508 

m  special  cases 609 

injuries  to  the  person  of  deceased  and  to  others  from 

the  death 511 

death  instantaneous 509-514 

Statutes  of  Iowa 512 

exemplaiy  under 512,  514 

construction  of 513 

California  Statutes , 514 

exemplaiy  under 514 

effect  of  a  life  insurance  policy •■  515 

who  entitled  to  recover _. 515,  516 

conclusions — contributory  negligence 516 

in  case  of  negligence  of  fellow  servant.  176-180,  516 

in  case  of  negligence,  etc 517-537 

false  imprisonment 538-542 

malicious  prosecution 543-548 

libel  and  slander ,549-555 

seduction  and  crim.  con 556-563 

fraud  and  deceit 564-573 

infringement  of  patent 574-580 

copyright 581-584 

trade-mark 584-588 

injuries  to  property — trespass  to  real  property 

589-606 


INDEX.  719 

DAMAGES— Continued—  page 

in  case  of  injuries  from  public  officers 607  618 

to  personal  property 619-625 

conversion 626-657 

replevin 658-666 

under  special  statutes  nominal — when  allo-wed.667,  678. 

679-682 

where  excessive — verdict  set  aside 683-699 

inadequate 699-703 

DECEIT— (See  Fraud  and  Deceit) 564,  573 

DEFAMATION— (See  Libel  and  Slander) 549,  555 

DUTY  —  (See  Damages—  Contracts— Injury— Negligence— Con- 
tributory Negligence) — 

of  injured  party  to  protect  himself 19 

of  the  plaintiff  to  prevent  injury  and  its  consequences 130,  135 

EMINENT  DOMAIN— (See  Damages— Statutes)— 

damages  where  property  is  taken 668 

EVICTION — See  Contracts  and  Covenants— Damages) — 

EXCHANGE— (See  Damages,  Bills  of  Exchange,  Contract)— 

as  an  element  of  damage 207 

EXEMPLARY  DAMAGES— controversy  as  to 22 

when  the  jury  may  allow,  as  an  example  and  punishment 28 

the  doctrine  a  departure  from  true  principles  of  the  law 28 

the  doctrine  applied — when • ^  65 

conflicting  views  of  Mr.  Greenleaf  and  Mr._  Sedgwick. ._ 65-66 

the  doctrine  recognized  in  almost  every  variety  of  injuries 67-68 

not  universal — when  qualified 69 

and  compensatory,  distinction  between  frequently  unimportant. . 

70,  71,    72 

views  of  Mr.  Rutherford 74 

origin  of  the  term  smart  money 75 

rule  of  the  civil  law _ 75 

doctrine  recently  considered  and  critically  reviewed  by  Nelson.  J. 

76,  77,    78 

opinion  of  Mr.  Justice  Campbell 79,     80 

intent  of  the  wrongdoer  an  important  element 82 

doctrine  not  apphcable  to  infants  and  non-compotes 85 

nor  to  municipal  corporations 86 

illustrated  by  English  cases 86,    87 

American  cases 88,    89 

statement  of  the  rule 90 

in  case  of  negligence 90,    91 

liability  of  principal  to,  for  acts  of  agent 92,     93 

principal  liable  for,  only  when  culpable 94,  95,  96,     97 

negligence  must  be  gross ._ 99 

the  doctrine  of  compensation,  frequently  extended  to  give  equal 

indemnity 101,  l02,  103 

views  of  Prof.  Greenleaf. .•;•••.• 1^ 

prosecution  and  punishment  for  the  wrong  in  mitigation 105,  107 

contraiy  doctrine 107 

where  refused 108 

when  the  principal  not  liable  to • 108,  109 

in  case  of  a  breach  of  promise  of  marriage 110 

in  case  of  assault  and  battery 472-480 


720  INDEX. 

EXEMPLARY  DAMAGES— Continued—         _  _  page 

not  allowed  generally  under  statutes  providing  for  damages  for 

an  injury  resulting  in  death,  etc ....  498 

but  may  be  recovered  under  the  statutes  of  California  and  Iowa, 

512.  514 

FALSE    IMPRISONMENT  — (See   Torts  —  Injuries  —  Damages- 
Assault  AND  Battery) — 

damages — general  rule 538,  539 

exemplary 540 

mitigation  of . . .   541 

what  may  be  shown  in  mitigation  of. 542 

FENCE — (See  Statutes — Damages) — 

duty  of  railroad  companies  to , 674 

FIRE — (See  Negligence — Contributory  Negligence — Injury — 
Damages) — 

injury  from 46,     49 

conflict  of  decisions  in  certai^i  cases 49,     51 

caused  by  negligence 170,  521.  529 

statutes  against  setting  out 672 

FRAUD  AND  DECEIT— (See  Fraud— Damages)— 564 

general  principles  relating  to 564 

in  the  sale  of  property 565,  566 

damages  in  case  of 568,  569 

contemplated  damages 570 

in  reference  to  land 570 

waiver  of • 571 

what  no  defense  in  case  of 571 

surety — indorsee — principal 571 

when  the  buyer  may  sell  property  and  still  recover 572 

FRAUD— (See  Damages— Fraud  and  Deceit— Torts)— 

generally  considered 55 

breaches  of  contract 57 

under  aggravating  circumstances 58 

distinction  between  tort  and  contract 62 

doctrine  of  common  law 62 

of  bailor,  in  contracts  with  carriers. . .  321 

on  sale  of  personal  property — rescission. 270 

damages  in  case  of 271 

with  warranty 275,  277 

in  the  transfer  of  notes — damages 209,  210 

sale  of  real  estate — damages 421 

general  principles  relating  to 564 

in  the  sale  of  property  generally 565,  568 

damages 568,  570 

in  case  of,  defendant  answerable  for  contemplated  damages 570 

misrepresentation  in  reference  to  land 570 

waiver  of— what  is 571 

rights  of  innocent  bona  fide   holder  of  negotiable   paper   not 

affected  by 571 

in  case  of,  when  the  vendee  may  sell  property  and  still  recover. .  578 

FREIGHT,  damages  for  failure  to  furnish 337 

FRENCH  LAW,  liability  of  minors  and  insane  persons  under,  n 487 

GOLD— (See  Contracts— Damages)— coin,  agreement  to  pay  in.  .199,  205 


INDEX.  721 

GOOD  AND  BAD  FAITH,  effect  of  fSee  Injury— Torts— Motives)—  page 

22,  54,  55,  57,  61,  62,  63,  82,  83,  85.  86,  8S,  90.  94,  104,  108,  109, 

625,  665,  471,  481,  571,  572,  587,  615 

GRADING  STREETS— (See  Injury— Interest— Damages)— w... 40,    41 

GROSS  NEGLIGENCE— (See  Negligence)— 

rule  as  to 28,  66  -68 

assessment  of  punitive  damages  when 90 

in  New  York  qualified  doctrine 91 

the  En<?hsh  rule 91 

of  agents  of  common  carriers,  n 91 

exemplary  damages — when  principal  liable  for '. .  .92 — 99 

principal  only  liable  for  when  he  authorizes 
or  ratifies  the  act 94-98,  108 

when  refused 108 

common  carrier  cannot   contract  for  exemption  from    liabiUty 

,  for.... 345^  357 

telegraph  companies  cannot 357 

liability  for  generally .517    537 

HADLEY  V.  BAXENDALE,  doctrine  of— contemplated  damages  may 

be  recovered 10,  29,  236,  238,  332,  350,  409 

INCUMBRANCES— (See  Contracts  and  Covenants)— 

damages  on  breach  of  the  covenant  against 874 

INJUNCTION— (See  Bonds)— 

damages  on -142-411 

INJURY— 

duty  of  a  party  to  protect  himself  from 19 

when  the  injured  party  contributes  to 21 

essential  to  an  action  that  it  be  cognizable  by  law 28 

must  be  proximate 7  28 

in  torts  may  be  remote .'  28 

to  maintain  action  therefor  plaintiif  must  have  a  legal  interest'. .' !  31 

injuria  sine  damno — what  is 3I 

damnum  absque  iujm-ia— instances 32 

maxim  applicable  in  case  of  non-exercise  of  powers  by  municipal 

corporations 32,  33 

failure  of  postmasters  to  publish  un- 
called-for letters 34 

failure  of  boards  of  supervisors  to 
select,  as  provided  by  statute,  a 
newspaper  in  which  to  publish  the 
proceedings  of  the  board  and  the 

laws  of  the  general  assembly,  35,  36 

other  cases 36 

actions  for  damages  on  account  of  animals 

ferw  naturce 36 

actions  on  account  of  an  entry  upon  lands 

where  it  was  necessarj^ 36 

an  action  for  pulling  down  a  house  to  arrest 

the  progress  of  a  fire 37 

an  action  for  filling  marshy  places,  etc 37 

by  the  defendant  essential  to  a  recovery 38 

legal  or  actionable — esssential ,38 

the  terms  injuria  and  damnum 38 

damnum  absque  injuria  considered 38,  39    40  41 

duty  of  the  plaintiff  to  prevent '. . .  '130'  131 

where  increased  by  plaintiff's  negligence '       '131 

46 


722  INDEX. 

INJURY— Continued—  ,    ,  tage 

where  aggravated  by  the  plaintiff ; jg^ 

where  increased  by  neglect  to  use  reasonable  means  to  avoid 133 

where  plaintiff  may  recover  notwithstanding  his  negligence 134 

on  breaches  of  contracts  for  services ; 135 

reasonable  means  to  avoid  required lo5 

in  case  of  torts— to  the  person— (See  Assault  and  Battery)  ^^ 

elements  of,  in  assault  and  battery 471 

aggravation 472 

mitigation 472 

character 473 

res  gestce 474-477 

pecuniary  circumstances 478 

ag^avating  circumstances  . . .  480 

owmg  to  intemperance 481 

permanent  injury 481 

summary 482 

complete  defense 483 

by  infants  and  non-compotes 484 

note  relating  to 484 

French  law,  n 487 

resulting  in  death 490 

common  law  doctrine 490 

English  legislation 492 

statutes  of  New  York 493 

various  states,  n 493-505 

damages — actual  and  pecuniary 498 

nothing  allowed  for  physical  or  mental 

suffering 498,  502 

limited  by  statutes 502 

construction  when  not 502 

what  competent  to  show 503 

expectation  of  life 503 

instances 504 

legal  right  not  essential 505 

presumptions 505,  506 

value  of  an  annuity 506 

Carlisle  Tables 506 

statutes    have   no    extra    territorial 

operation 506 

widow — children 507 

wealth  of  defendant 507 

death  of  a  child 507 

in  pari  delicto 508 

in  special  cases 509 

injuries  to  the  person  of  deceased  ...  511 

to  others  from  the  death 511 

death  instantaneous 510-512 

statutes  of  Iowa 512 

exemplary  damages  under  512-514 

construction  of 513 

from  negligence— gross  negligence SqISo 

false  imprisonment ^ao_k1o 

malicious  prosecution 54o  d4» 

Hbel  and  slander r  S"?rq 

seduction  and  criminal  conversation c^^  con 

fraud  and  deceit ai  o  lo? 

to  personal  property no 

trespass  • "^^ 


INDEX.  723 

INJURY — CONTINUKD —  PAGE 

to  personal  property,  trespass,  general  i-ule  of  damages 619 

where  taken  or  destroyed 619 

where  only  injured — rule 620 

agrgravation — exemplary  damages 621 

mitigation  of  damages 623 

for  conversion 626-657 

goods  unlawfully  taken  and  detained — replevin 658-660 

damages  for  taking  property  for  public  purposes 667-678 

implied  from  wrongful  act 679 

INNKEEPERS— (See  Bailments— Damages)— 318 

INSANE  PERSONS— (See  Torts— Damages— Exemplary  Damages)— 
liability  of  for  torts 85,  189,  484-489 

INSURANCE— 

damages  on  policies  of 447 

ship  and  cargo 448 

general  rule 448 

mode  of  estimating  value  on  open  policy. .  449 

in  case  of  partial  loss 450 

valued  policies 451,  452 

general  average 453 

underwriters  may  repair 453 

freight  and  profits 454 

maxim  causa  proxima,  etc 455 

fire  insurance 456 

lessee's  interest 458 

mortgagee's  interest 459 

bailees  and  trustees 460 

vendor — contract  of  sale 460 

application  of  maxim,  causa proxima,  to. .  461 

damages  limited  by  contract 461 

rebuilding  and  repairing 462 

double  insurance 463 

subrogation 467 

life  insurance 468 

creditor's  interest 469 

amount  of  on  life  not  deducted  in  action  for  the  death  of  the 

party 515 

INTENT— (See  Motives— Good  and  Bad  Faith)— 

INTEREST— 

as  an  element  of  damages,  n 29 

of  the  plaintiff  susceptible  of  damage  an  essential  element  of  an 

action 31,    37 

an  element  of  damages  for  the  non-payment  of  money  due  43,  191 

recoverable  in  certain  cases  of  fraud 61 

as  damages  by  the  civil  law 192 

Code  of  Louisiana 193 

for  the  non-payment  of  money 191,  230 

on  promissory  notes,  after  due 193 

at  place  of  payment 195 

in  different  states — statutory  provisions,  n 197 

when  parties  stipulate  for  at  a  particular  place 206 

and  consideration  money,  when  an  element  of  damages  or  breach 

of  covenant  of  seizin 368,  369 

as  damages  on  a  partial  breach  of  the  covenant  of  seizin 374 


724  INDEX. 

INTEREST— Continued—  page 
as  an  element  of  damaores  on  a  breach  of  covenant  against  incum- 
brances  375,  377,  381 

as  an  element  of  damages  on  a  breach  of  the  covenants  for  quiet 

enjoyment  and  v/arranty 384,  387,  388,  391-393 

as  an  clement  of  damages  where  the  vendee  purchases  an  out- 
standing title 396,  397 

as  an  element  of  damages  on  the  breach  of  executory  contracts 

for  the  sale  of  land 399 

as  an  element  of  damages  on  a  breach  of  contract  relating  to  land 

in  certain  cases 415-417 

as  an  element  of  damages  where  the  vendee  fails 418 

where  the  damages  exceed  the  penalty  443 
where  the  collection  of  money  is  res- 
trained by  injunction 444 

of  lessee  in  case  of  loss  of  property  insured 458 

mortgagee  in  case  of  loss,  under  a  policy 459 

bailees 460 

vendor  on  a  contract  of  sale — in  case  of  insurance  and  loss. . .  460 

creditor  in  life  of  his  debtor,  in  case  of  insurance  on  life 469 

generally  allowed  on  amount  of  loss  sustained  by  a  breach  of  con- 
tracts as  well  as  for  torts 329 

as  an  element  in  case  of  imprisonment  by  the  master  of  a  ves- 
sel, w 539 

as  an  element  in  case  of  conversion 627,  629-631 

allowed  for  conversion 642 

INTOXICATING  LIQUORS— (See  Statutes— Damages)— 

damages  from  sale  of 675-678 

JURY-(See  Verdicts— Injury— Damages)— 

former  discretion  of 24 

facts  must  be  found  by 25 

duty  of,  to  regard  the  law  as  given  by  the  court 26 

verdict  of — power  of  the  court  to  set  aside  verdict  of 27,  683-703 

exemplary  damages  in  the  discretion  of 65,  70,  71,  87, 

88,  92,  104-106 
contributory  negligence,  a  question  in  general  one  of  fact  for. . . .  181 

on  the  part  of  a  parent,  one  for. 188 

damages  in  case  of  breach  of  promise  of  maiTiage  in  discretion  of,  430 
when  they   may  consider  the  pecuniary  circumstances  of  the 

defendant  in  cases  of  tort •_ . ._ 479 

damages  by,  in  cases  of  permanent  personal  injury 482 

when  negligence  a  question  for 519 

malicious  2)roseciif  ion — when  they  go  beyond  actual  damages  in  cases  of  545 

where  the  court  refused  to  disturb  their  verdict 545 

want  of  probable  cause  in  a  suit  for,  a  question  for 546 

what  they  may  consider  in  cases  of  seduction  and  critn.  con..  .561-563 

verdict  in  actions  for  infringement  of  patents 577 

when  they  may  find  treble  damages 671 

verchcts  of,  may  be  set  aside  as  excessive 683-699 

inadequate 699-703 

JURIDICAL  CAUSE  —  (See  Injury  —  Damages  —  Negligence- 
Maxims) — 

the  maxim,  causa  proxima,  etc.,  considered 7 

difficult  to  trace  remote ._ 7 

the  subject  of  causation  considered 7 

views  of  Chief  Justice  Shaw 7 

Mr.  Bigclow 7,  8 

Lord  Bacon • 7.  8 


Iiq"DEX.  725 


JURIDICAL  CAUSE— Continued—  ^ 


PAGE 

9 

remote  causes V91  _'S99 

views  of  Mr.  Mill  n -J^^  '^5:^ 

Mr.  Wharton,  n a^^-o^i 

LAW  AND  FACT-  .  .    .  t,    .1,    •  oa 

law  determined  by  the  court,  fact  by  the  jury ^4 

illustration  in  conversion  of  property :.-"y'\ oe 

action  on  promissory  note,  execution  denied ^o 

LEGAL  TENDER  ACTS -(See  Contracts— Damages— Bills  op 

Exchaxge)- oni  90^ 

construction  of ZOl-^Ob 

LIBEL  AND  SLANDER— 

damages— general  rule "rV  »«"  ^n 

joint  wrongdoers 1  iq'  tn 

mitigation  of 1-'^^'  ^'^.^ 

exemplary ooo 

pecuniary  condition  of  the  defendant 554 

amount  of ^^^ 

LIMITATION  OF  LIABILITY-lSee  Statutes— Common  Cakriers— 
Telegraphs— Damages— Injury)— 

policv  and  necessity  of. • •  •  ^ 

i-ules,  maxims,  and  doctrines,  as  to »,  ^o 

policv  of  statutory  regulation  of A- 

statutory  provisions  as  to  contracts 14 

punitive  damages lai 

on  contracts  for  payment  of  money •  •  •  191 

in  case  of  injurj^  resulting  in  death •  •  • •••••.•  • -f  4-5!^^ 

from  infringement  of  a  patent  right. .  5/5 

LIQUIDATED  DAMAGES— 

of  the  rio-ht  to  stipulate  for  the  amount  of  damages •  • .  idb 

whether  "the  sum  stipulated  is  liquidated  damages  or  a  penalty, 

construction |^^ 

intention  of  the  parties  controls i-g ' 

where  it  is  treated  as  a  penalty j-J^ 

liquidated  damages l-j^ 

English  cases  where  held  a  penalty 139,  140,  141 

^  liquidated  damages 142,  143 

EngHsh  doctrine  followed  in  this  country  . . . . .  • .... . .  ■■■■■■■  l^-^-  Jf^ 

American  cases  regarding  the  sum  named  as  hquidated  damages.  148 
where  the  price  of  property  to  be  delivered  is  fixed,  it  controls  the 

amount : ':  '.'.^ i"."  "  1! "  i 

if  sum  stipulated  is  a  penalty  plamtiff  may  recover  his  actual 

1-50 


damages. 


if  liquidated  damages  he  never  can  recover  more lou 

damages  cannot  generally  exceed  the  penalty •■   ■  l-W 

rule  not  universal ■ •  •  • l'^^'  j^^ 

not  applicable  to  agreements  for  the  payment  ot  money IM 

parties  cannot  stipulate  so  as  to  afoid  the  usury  laws ■■■^-   l-W 

propositions  deducible • 1-^'-''  |55 

■when  the  sum  expressd  should  be  treated  as  a  penalty. l-^o 

Uquidated  damages. . .  1.54 

rules  of  construction ■^'-'*'  •^'-"■' 

LRTE  STOCK-                       .,..,,.             „  qiq   qi9 

liability  of  common  earners  hniited  m  case  01 oiy,  0^ 

LOCATIO-HIRING  FOR  REWARD— (See  Bailments)— 


726  INDEX. 

LIQUORS— (See  Damages — Statutes)—  paob 

liability  for  damages  from  sale  of 675-678 

MALICIOUS  PROSECUTION— (See  Damages— Torts)— 

damages — elements  in  case  of 543 

of  an  action  for 544 

measure  of 544 

mitigation  of 545 

conclusions 546 

defense 547 

MALPRACTICE— 

of  surgeons,  n 24,  67,  91,  160,  161,  535 

MARRIAGE — (See  Contracts  of  Marriage) — 

breach  of  promise  of — eifect  of  circumstances 69 

exemplaiy  damages — when  allowed 68,  110 

mitigation    of   damages  —  what   may   be 

shown  in 119 

damages  in  case  of 430 

discretion  of  the  juiy 430 

plaintiff  should  be  indemnified  430 
exemplary  generally  allowable 

110,  431 
exception  in  Massachusetts .  69,  111 
what  constitutes  no  defense  .  .  431 
mattei's  in  aggravation  of. .  . .  432 
matters  in  mitigation  of 434 

MAXIMS — (See  Injuey — Damages — Contracts) — 

lex  semper  dabit  remedium 2 

ubi  jus  ibi  remedium 2 

causa  proxima  et  non  remota  spectatur 27,  42,  46,  191 

views  of  Shaw,  C.  J.,  in  relation  to 7 

Mr.  Bigelow,  in  relation  to 7,      8 

injure  non  remota  causa  sed  proxima  spectatur 9 

dolus  circuitu  non  purgatur 10 

salus  2)opuH  suprema  lex 37 

qui  facit  per  alium  facit  per  se 103 

nemo  debet  bis  vexari  pro  eadem  causa 81,  107 

nidlus  commodum  capere  potest  de  injuria  sua  propria 158 

de  minimis  non  curat  lex 681,  682 

other  maxims 9 

MALICE— (See  Damages)— 22,  29,  68,  70,  86,    98 

MALICIOUS  INJURY— (See  Damages— Malice)— 

MENTAL  SUFFERING— (See  Exemplary  Damages)— 

as  anelementof  damages.  .22,  23,  70,  72,  74,  76,  93,  n.,  104,  471, 

472,  498,  533 

MESSAGES— (See  Telegraphs)— 347,  362 

MITIGATION— 

generally  it  may  be  shown  that  the  wrong  was  without  malice.  .113,  116 

plaintiff  provoked  the  injury 29,  113 

in  libel  and  slander — that  plaintiff  had  previously  defamed  the  defend- 
ant    113 

that  he  provoked  the  defamatory  matter 113 

the  libellous  matter  was  copied 113 


INDEX.  727 

MITIGATION— Continued—  page 
in  libel  and  slander— that  the  -words  were  spoken  in  the  heat  of  pas- 
sion or  under  excitement 113 

that  there  were  general  suspicions  that  the  plaintiff  was 
guUty  of  the  crime  charged  and  for  which  suit  is  brought  114 

that  the  defendant  did  not  act  wantonly ._.  115 

his  extreme  youth  or  even  partial  insanity 115,  116 

general  bad  character  of  the  plaintiff" 115 

actions  for  criminal  conversation 117 

seduction 117,  559 

what  may  be  shown •' 118 

cannot  be  shown 118 

breach  of  promise — what  may  be  shown 119 

false  imprisonment — what  may  be  shown 120,  121,  541 

conversion  and  trespass — what  may  be  shown.  121,  122, 

623,  648 

good  or  bad  faith  as  affecting _.  •  122,  123 

assault  and  batten/ — matters  that  may  be  shown. 125,  126, 

472,  478 

pecuniary  circumstances  of  the  defendant 127 

bad  character  of  the  plaintiff 128 

indictment,  conviction  or  fine  for  the  offense 128 

what  cannot  be  sho'5\Ti 129 

malicious  prosecution 129 

moral  guilt  in  case  of _. ••■  ■  129 

circumstances  of  suspicion  in,  case  of 541,  545 

against  ministerial  officer — what  may  be  shown  in 615 

of  replevin 666 

MONEY— (See  Contract— Legal  Tender  Acts)— 

means  coin 199>  '^Ol 

gold  or  silver  coin 205 

damages  for  non-payment  of 190,  230 

MOTIVES— (See  Injury— Torts)— 

of  the  wrongdoer — as  affecting  the  amount  of  damages 22 

effect  of  on  damages 22 

willful  wrongs 54,    5-5 

breaches  of  contracts  57,    61 

distinction  between  tort  and  contract  as  to 62,     63 

when  an  important  element 82,    83 

general  doctrine  not  applicable  to  infants  or  non-cornpotes 85 

municipal  corporations 86 

American  cases 88,    90 

of  principal =. 94,  104 

without  evil  motives  persons  cannot  generally  be  subject  to  exem- 

plaiy  damages 108^  109 

as  affecting  damages  in  trespass 123,  124,  625-665 

in  case  of  injury  to  the  person  471-481 

in  actions  for  malicious  prosecution 546-547 

libel  and  slander 549-555 

fraud  and  deceit 571,  572 

violation  of  trade-mark 578 

against  pubhc  officers 615 

MUNICIPAL  CORPORATIONS— 

not  Liable  for  non-exercise  of  municipal  powers 32 

failure  to  establish  a  pest-house. •^.  •  33 

injury  from  grading  streets 34.  40 

changing  grade 40 

when  liable  for  under  statutes,  n 41 


728  INDEX. 

MUNICIPAL  CORPORATIONS— Continued—  page 

exception  to  general  rule  in  Ohio,  n 41 

not  liable  to  exemplary  damages 86 

to  treble  damages 86 

for  buildings  destroyed  to  arrest  fire 37 

are  liable  for  injury  caused  by  imperfect  sewerage  and  drainage,  n    37 

NEGLIGENCE— (See    Damages— Injury— Contributory     Negli- 
gence)— 

injury  from  by  fire •  • 46 

conflict  of  decisions 49 

ofiicious  interference  with  property  of  others 52 

gross,  willful  wrongs 53 

fraud,  outrage  and  insult 64 

rule  as  to  exemplary  damages  in  case  of 90 

gross  negligence 90 

degree  of  gross  necessary  to  exemplary  damages 99 

where  exemplary  damages  refused 108 

when  principal  not  hable  for  negligence  of  servant 108 

reasonable  care  must  be  used  to  prevent  injury ._ 130 

plaintiff  cannot  recover  when   his  negligence  materially    con- 
tributes to  the  damage _ 138 

both  parties  must  exercise  ordinary  care .••.•••   •^''^^ 

defendant  liable  when  his  negligence  the  proximate  cause  of  injury  159 

plaintiff's  negligence  may  be  shown  in  mitigation 159 

blamable  carelessness  by  which  a  child  is  injured 54 

in  selling  medicines 54 

gross  negligence  of  persons,  corporations  or  companies 91 

principals  when  liable  for  acts  of  agents 92 

to  become  liable  to  exemplary  for,  must  be  culpable. . .     94 

degrees  of  gross  negligence ._ ; Ai  iak 

when  exemplary  damages  can  be  giveq  against  a  corporation.  .92-105 

criminal  prosecution  as  a  defense  to  damages 105,  106 

in  mitigation  of  damages 107 

where  exemplary  damages  have  been  refused 108 

principal  when  liable  to  exemplary  damages  for 108,  110 

a  tort — definitions 517 

a  question  of  law  and  of  fact 518 

when  for  the  court •  •  •  •  ^19 

when  for  the  jury. • 519,  o2,0 

for  what  answerable  in  case  of J-^l 

negligent  fires ■ 521,  528 

damages  must  be  natural  and  proximate  cause  of 521 

the  judicial  cause  of _ 521 ,  528 

discussion  of  the  question  of  causation 521,  527 

successive  of  the  different  parties ' '  *  toQ 

damages  in  case  of — elements  of ooS 

illustrations  of  the  rule  of  damages  in  case  of 5^0 

damages  in  case  of  injuries  to  real  property 5,^6 

personal  property 5o6 

other  cases 337 

NEW  TRIALS— (See  Verdicts— Damages)— 

NOMINAL  DAMAGES— (See   Damages— Injury— Contracts) — 

375,  679-682 

wrongful  acts  import  damages 679 

cveiy" injury  imports  damages, •  • ._ •.••.■••  "'''" 

where  the  law  gives  an  action  for  some  act,  the  doing  of  it  im- 
ports damage 679 

every  violation  of  right  imports  some  damage 079 


INDEX.  729 

NOMINAL  DAMAGES— Continued—  page 

in  case  of  assault  and  battery 680 

diverting  water 680 

the  damages  are  so  small  that  they  cannot  be  estimated.  680 

breach  of  incumbrances 680 

contract  to  indemnify 680 

proof  of  services  rendered 680 

where  no  damages  are  shown 681 

they  will  be  refused 681.  682 

consideration  of  maxim,  de  minimis  non  curat  lex 682 

NON-DELIVERY   OF   GOODS— (See  Contracts— Damages— Per- 
sonal Property) — 232-256 

NON-PAYMENT  OF  MONEY— (See  Damages— Bills  op  Exchange 
— Contracts) — 

damages  for,  actual  compensation 191 

interest  as  damages 192 

damages  on  promissory  notes 193 

interest  at  the  place  of  payment 195 

in  different  states,  n 196,  200 


money  means  com . 


199 


legal  tender  acts  constitutional 200 

applied  to  antecedent  debts _. 401 

agreement  to  pay  in  gold  or  silver  coin  or  gold  or  silver 201-205 

propositions  deducible  from  the  decisions 205 

contract  of  affreightment — sterling  money 205 

stipulation  as  to  mterest 206 

exchange ■ 207 

protest 208 

indorser  or  surety  on  note,  when  they  can  reduce  or  defeat  the 

claim 209 

fraud  in  transfer  of  note — wan-anty 209 

notes  payable  in  specific  article 210 

bills  of  exchange — damages  on 212-220 

protest 220 

damages — lex  loci  contractus  governs 221 

scaling  laws 222-230 

North  Carolina _ 222  225 

Alabama  and  Georgia 226-228 

Virginia 228—230 

NOTES— (See  Non-payment  op  Money)— 

NUISANCE— (See  Trespass)— - 602-605 

OFFICERS— (See  Public  Officers)- 

damages  for  the  nonfeasance,  misfeasance  and  malfeasance  of. . . 

607-613 
OVERFLOW— (See  Trespass)— 

of  land — damages 598-601 

PAIN — (See  Damages — Mental  Suffering) — 

as  an  element  of  damages — to  the  body  and  mind. 70,  72,  74-79,  472 

to  the  feeUngs  and  body 472 

distress  of  mind 69 

injured  feelings 70 

lascerated  feelings 70 

controversy  as  to 22,  23,  69-105 

in  actions  for  breach  of  promise  of 
marriage 69,  110,  430 


730  •  INDEX. 

PART  PERFORMANCE— (See  Contkacts)—  ^  page 

of  contracts  to  deliver  property 252-256 

for  services 288-306 

by  bailees 322-329 

of  waiTanty  on  the  conveyance  of  land 394 

to  convey 412 

PASSENGERS— (See  Common  Carriers)— 

injury  to 340-342 

death  of 343,  490,  516 

elements  of  damages — for  injury  from  negligence 635 

PATENTS— 

power  of  Congress — infringement 574 

actual  damages 574-577 

treble  damages — when  recoverable  578 

what  may  be  allowed  as  damages  in  case  of  infringements 578 

defendant  may  be  required  to  account 579 

PAYMENT — (See  Contracts — Damages — Non-Payment  of  Money) — 

PECUNIARY    CIRCUMSTANCES— (See   Torts— Mitigation— Ex- 
emplary Damages) — 
of  the  defendant,  the  right  to  show  in  case  of  personal  injuries. . . 

127,  128 

allowed  to  be  shown  in  New  Hampshire 128 

not  permissible  in  aggravation  in  Iowa 478-479 

dissenting  views 479 

not  allowed  in  actions  for  damages  for  a  death  .  507 

are  allowed  in  actions  for  defamation '.  553 

allowed  as  a  circumstance  showing  social  rank 

and  influence 554 

controversy  in  reference  to 554 

in  actions  for  seduction 558 

crim.  con 563 

breach  of  promise  of  marriage. 69,  430 

PENALTY— (See  Liquidated  Damages— Bonds)— 

PERMANENT  INJURY— (See  Injury— Damages)— 

to  person 481,  483,  535 

PERSONAL  PROPERTY  —  (See  Contract  —  Damages— Injury- 
Trespass — Trover  and  Conversion) — 

damages  on  contracts  relating  to '. .. .  236-284 

injury  to 619-625 

aggravation  of 65,  621 

mitigation  of 621,  623 

PERSONAL  INJURIES— (See  Injury— Damages— Death-Assault 

and  Battery) — 470-480 

PLAINTIFF— 

right  or  interest  of 31-37 

essential  elements  for  an  action  by 31 

instances — damnum  absque  vijuria 32 

municipal  corporations  not  liable  to,  for  non-exercise  of  powers 

possessed  by  them 32-34 

postmasters  not  liable  to,  for  non-publication  of  uncalled-for  letters    34 
board  of  supervisors  not  liable  to,  for  non-publication  of  their  pro- 
ceedings and  the  laws  of  the  state 35 


INDEX.  731 

PLAINTIFF— Continued—  fage 

where  no  right  of  action  exists  in  other  cases ob 

case  of  mine 36 

a  well 36 

an  artificial  stream 36 

animals /eras  na^wroe.. .     86 
buildings  destroyed  to 

arrest  a  fire 87 

drainage  of  land 37 

duty  of.  to  prevent  injury  and  its  consequences. 130 

where  the  consequences  have  been  aggravated  by  his  fault 13^ 

instances  of  neglect  of  reasonable  means  to  prevent  loss 133 

where  he  may  recover  notwithstanding  neghgence 134 

duty  of,  in  case  of  employe  to  seek  other  employment •  135 

his  right  to  damages  as  affected  by  stipulations 136-156 

contributory  negligence.  .157-189 
the  power  of  the  court  to  set 
aside  verdicts 683-703 

PLEDGING— (See  Bailments)— 308,  313-815 

POLICY— (See  Insurance— Statutory  Provisions)— 

POST  MASTERS— 

not  liable  for  failure  to  publish  uncalled-for  letters 34 

POWER  OF  COURTS— (See  Verdicts— Jury)— 

PRETIUM  AFFECTIONIS— (See  Trover  and  Conversion)— 

doctrinal  in  relation  to 649,  664 

PREVENT  LOSS— (See  Injury—  Damages)— 

duty  to 19.  21,  180-135 

PROFITS— (See  Damages— Contracts)— 

loss  of  as  damages 57,  58,  61,  n.,  134,  334-338,  559,  596 

PROMISSORY  NOTES— (See  Contracts— Bills  op  Exchange)— 198,  280 

PROMISE  OF  MARRIAGE— (See  Marriage— Contracts)— 

PROPERTY— (See  Injury— Damages— Torts— Trover  and   Con- 
version)— 

damages  for  officious  interference  with 52,     bo 

private  taken  for  public  purposes 667 

willfully  taken — damages •  •     54 

contracts  for  delivery  of 231-284 

PROTEST— (See  Contracts— Bills  of  Exchange)— 

PROXIMATE  CAUSE— (See  Maxims— Damages— Juridical  Cause)— 

consideration  of  the  subject 7,  8,  9,  46,  47,  521-527 

PROXIMATE  DAMAGE— (See  Injury— Damages— Judicial  Cause)— 
what  is 7,42,  46,  191 

PUBLIC  OFFICERS— 

judicial— liability  of 607-609 

ministerial 609,  610 

presumptions  in  favor  of 611 

neglect  of 611 

property  wrongfully  taken 612 

escape 613 


732  INDEX. 

PUBLIC  OFFICERS— Continued—  page 

liability  for  consequential  damages ol4 

exemplary 614 

mitigation  of  • . .  _. 615 

of  boards  of  supervisors 616 

sureties  on  bonds  of 616 

attorneys  as 617,  618 

PUBLIC  PURPOSES- 

property  taken  for oo^ 

destroyed  for 37 

PUNITIVE  DAMAGES— CSee  Exemplary  Damages)— 

PURCHASE  MONEY— (See  Contracts  and  Covenants)— 

and  interest  when  measure  of  damages 384 

QUANTUM  MERUIT— (See  Contract— Damages)— 

in  case  of  personal  services 290,  306 

QUIET  ENJOYMENT— (See  Contracts  and  Covenants)— 

damages  on  breach  of  covenant  of 383 

EAILROAD  COMPANIES -(See  Bailments— Common  Carriers)— 

insm'e  goods  carried 318 

rule  not  applicable  to  live  stock 319 

damages  for  non-delivery 322 

delay 323 

liability  for  beyond  the  terminus 322,  325 

market  value  of  goods 327 

in  case  of  partial  loss 328 

sale  of  goods 329 

interest  as 329 

for  breach  of  contract  to  carry 329 

delay  to  deliver  machinery 334,  336 

refusal  to  deliver 339 

contracts  limiting  liability 339,  340 

in  case  of  injury  to  passengers 340 

delay  of  passengers 342 

death.... 343,  490 

baggage 344 

exemplary o45 

injury  by  negligent  fires 46,  170 

failure  to  fence 674 

REAL  ESTATE— (See  Contracts  and  Covenants— Bonds)— 

damages  on  breaches  of  contracts  and  covenants  relating  to.  .366-429 

for  injury  to 592,  593 

possession 593 

trees 593 

tenant's  rights. 594 

limits  to 595 

profits  as  an  element  of 595 

exemplary  when 596 

by  water 597 

limitation  of ' 598 

where  a  trespass  benefits  as  well  as  injures 599,  600 

to  mining  interests 601 

for  nuisance 64,  602 

waste 605-606 

RECOUPMENT— (See  Mitigation— Damages)— 


IKDEX.  .   733 

REMOTE  DAMAGES — (See  Juridical  Cause — Damages — ^Remote 

Injury) —  pagb 

REPLEVIN— 

general  principles — damages 658,  659 

time  of  valuation 660,  661 

where  the  defendant  succeeds 661 

exemplary  damages — when 662 

in  case  of  detention  and  deterioration — damages 662 

where  the  property  is  lost  or  destroyed 663 

special  damages  by  plaintiff 663 

defendant. 663 

where  the  property  is  enhanced  in  value 664 

vindictive  damages 665 

damages  as  affected  by  extent  of  interest 665 

mitigation  of 666 

REMOTE  INJURY— (See  iNjuRT—TRESPASS—rRAUD— Gross  Neg- 
ligence)— 
damages  from  recoverable  when  they  are  such  as  might  be  reason- 
ably expected 10,  29,  55,  236-238,  350,  471 

in  case  of  ofKcious  interference  with  property 52,    53 

willful  wrongs 51,  54,     55 

fraud  generally 55 

fraudulent  breaches  of  contract 57-61 

gross  negligence 53,  55,  221,  537 

great  aggravation 621-623 

RES  GEST^— 

what  constitutes 474,  475,  478 

RULES— 

difficulty  of  framing 5 

arbitrary 6 

most  common  defective 6 

ca usa  proxima,  etc. ,  considered 7 

other  rules 9 

artificial  and  arbitrary 27 

elements,  principles  and  28,  29 

of  construction  of  stipulations  relating  to  damages 154 

RULE— 

compensation  as  a  limited  to  proximate  cause 42 

when  not  limited  to  proximate  cause 52 

in  case  of  gross  negligence,  fraud,  outrage  and  insult 64,  65-69 

compensatory  and  exemplary 70,  71,     72 

controversy  as  to 65  to    84 

exemplary  damages — not  applicable  to  infants 85 

nor  to  non-compotes 85 

municipal  corporations . .     86 

illustrated  by  English  cases 86 

American  cases ...     88 

statement  of  the  rule 90 

negligence 90 

of  agent 92 

culpability  of  the  principal  must  be  shown 94-99 

gross  negligence     99-104 

criminal  Liability  and  prosecution  for  the  injury 105 

in  mitigation  generally 107 

conflict 107 

allowing  or  excluding  exemplary  damages 109 

exempting  the  principal  from  liability 108,  109 


734  .  INDEX. 

RULE — Continued —  p^ob 

of  exemplary  damages  in  case  of  breach  of  promise  of  marriacre 

110,  111 

mitigation  of  damages 29.  112 

in  libel  and  slander 1 1:3-1 17 

seduction 118,  119 

breach  of  promise 119 

false  imprisonment 120 

conversion  and  tresp<iss 121 

good  or  bad  faith  as  alFecting 122 

assault  and  battery 125,  126 

bad  character  of  plaintiff  in 128 

in  case  of  malicious  prosecution ....  129 

moral  guilt  as  affecting 129 

requiring  the  plaintiff  to  prevent  an  injuiy  and  the  consequences 

of  it 130 

making  the  defendant  liable  for  the  natural  and  direct  conse- 
quences of  the  wrong 52.  6:3,  1:32.  470,  471 

where  the  consequences  have  been  aggravated  by  the  plaintiff. .'  132 

in  case  of  neglect  of  reasonable  means  to  prevent  loss 1:33 

where  plaintiff's  negligence  will  not  defeat  recovery i;34 

of  constniction  in  case  of  stipulation  in  a  contract,  penalty  or 

liquidated  damages 137-156 

as  to  concurrent  contributory  negligence 157-189 

on  breaches  of  contracts  for  payment  of  money 190-230 

sale  and  delivery  of  personal  prop- 
erty— warranty  fraud,  etc 2:31-284 

personal  services  —  specific    acts  — 

material  285-306 

in  cases  of  bailments 308-345 

on  the  part  of  telegraph  companies. :347-364 

and  covenants,  etc 365-429 

of  marriage 430-4:34 

relating  to  bonds 435-446 

policies  of  insurance 447-469 

in  case  of  torts — injuries  to  the  person 470-489 

injuries  resulting  in  death 490-516 

SALE  OF  CHATTELS— (See  Contr.\cts— Damages)— 

executory  contract— damages— seller's  breach 232 

where  the  price  is  not  paid   in 

advance 232 

paid  in  advance  233 

rule  in  New  York 233 

Iowa 233 

Indiana 2:33 

Texas 2:33 

California 233 

case  of  part  payment.  .233.  234 
reason  for  the  rule  of  highest  value 

when  the  price  is  paid 235 

reason  for  a  fixed  rule 236 

where  a  larger  rule  obtains 236 

doctrine  of  Hadleij  v.  Baxendale 

236-238 

application  of 238 

English  cases...  238  239 
American  cases.  .240-242 

for  non-delivery  of  stock 243 

distinction  between  and  other  prop- 
erty   243 


INDEX.  '^35 


PAGE 


■ih^V  OF  CHATTELS— Continued—  ,  *^nLi 

no  distinction  on  principle 244-24b 

time  and  place  of  deliveiy ^4b 

sale  to  pay  a  debt. ^4/ 

form  of  action  as  affecting  •.••••;•  <i* ' 
where  property  has  decreased  m 

value •••  j^° 

market  value  0-1    oro 

same  rule  in  torts ^-^l-  f-^j 

in  case  of  part  performance 2o2-2o4 

new  departure 254-25b 

warranty  and  fraud.  .256-267 
liability  extended  in  certain  case  261-264 
where  goods  bought  for  particular 

purpose.. 261 

m  case  of  diseased  oxen -io^ 

hay  sold 262 

hemp  purchased 263 

coal  dust  for  brick 262 

cabbage  seed 263-264 

wool  for  hats 264 

shares  of  stock 264 

breach  of  warranty  of  quahty 265 

former  doctrine  where  the  price  was 

paid ; 265-268 

rule  in  Illinois ^00 

Connecticut ^^68 

Georgia 268 

general  mle— reasons  for 268 

exception  to  the  rule. •  •  •  269 

in  case  of  fraud— rescission '^'^-^/.g 

of  the  right  to  rescind •  -273-2(8 

failure  of  purchaser  to  comply.  2 (S-<:i8^ 

vendor's  choice  of  remedies 279 

in  case  the  article  is  to  be  manu- 

factured 280 

of  the  manufacture  of  sulky 

280,  281 

rule  in  Connecticut •  •  • 281 

in  case  of  negligent  sale  of  drugs.     54 

fraudulent  sale  of  sheep 56 

a  gun Ob 

cotton 56 

warrantyof  title...........  ••283,284 

in  case  of  conversion  by  bailee  311,  oZy 
right  to  sell  incident  to  pledge...  315 

SALE  OF  LANDS-(See  Contracts  and  Covenants)-  ^  ^  ^  ^^^ 

damages-executory  contracts  tor. .V.V.V.V. . .  .398,  399 

breach  on  part  ot  venaor. „'   ,^0 

where  vendor  acts  m  good  faith •  •  -^^^^  4U.5 

general  doctrine . . .  •  •  .••••••;  •.•,; 4.aq*  409 

wViprp  the  vendor  acts  m  bad  faith •  • •  •  .'i^?»  *^^ 

Ipplicarion  of  principles  oi  Haclley  v.  Ba^eMe^iS^_^^^ 

case  of 412 

delay  in  the  performance. ^^2 

rule  in  case  of  partial  breacli 413-418 

special  cases 


736  INDEX. 

SALE  OF  LANDS— Continued—  vm-£ 

damages — breach  where  one  undertakes  to  secure  title  from  another  4 1 8 

where  the  vendee  fails 418 

grantor  tenders  a  deed 419 

in  case  of  rescission — when  allowed 419 

where  purchaser  has  given  notes 

419.  420 

false  representations  or  warranty 420,  421 

defense  on  the  ground  of  fraud 421 

SALE  OF  STOCKS— (See  Stocks)— 

SCALING  LAWS— 

adopted  in  states  that  formed  the  Confederate  States 223 

North  Carolina — scale  of  depreciation 223 

where  applicable 224 

ordinances  of  Alabama  and  Georgia 226 

where  applicable 228 

the  scaling  laws  of  Virginia 228-230 

SEDUCTION— 

exemplai-y  damages  in  case  of 68 

what  may  be  shown  in  mitigation  of 118 

cannot  be  shown 118 

remedy  for  at  common  law 556 

damages — general  rule 557 

aggravation  of 558 

mitigation  and  defense 5-59-560 

amount  of  vercUct 561,  562 

enticing  away  a  wife 562,  563 

cases  where  damages  held  too  remote 50 

SEIZIN— (See  Contracts  and  Covenants) — 

damages  on  breach  of  covenant  of 368-370 

SELLER— (See  Contracts  and  Damages) — 

breach  of  contract  by 2.32-248 

SERVICES — (See  Contracts — Contracts  for  Services) — 

breach  of  contracts  for 285,  306 

SERVANTS  —  (See    Contracts  —  Contributory     Negligence  — 
Injury) — 

knowledge  by  of  defects  causing  injury 174 

article  by  Judge  Cooley 177 

when  master  liable  for  negligence  of 94-98 

SETTING  ASIDE  VERDICTS— (See  Jury— Verdicts)— 

SETTING  OUT  FIRES— 

statutes  against 672,  673 

damages  in  case  of. 672,  673 

SHEEP— (See  Fraud  and  Deceit)— 

damages  in  case  of  fraudulent  sale  of 55,  56,  271,  272,  569 

SHERIFFS— (See  Damages— Public  Officers— Bonds)— 609-617 

SIGNATURES— 

genuineness  of  warranted 209 

SILVER— 

agreement  to  pay  in,  or  in  silver  coin 201-205 

SLANDER — (See  Lirel  and  Slander — Damages — Torts) — 549-555 


INDEX.  737 

SLAVE— (See  Damages— Torts)—  _  page 

damages  in  case  of  officious  interference  with 52,    53 

carrying  away 45,  623 

breach  of  contract  of  warranty  of,  n 273 

SMART  MONEY— (See  Exemplary  Damages— Damages)— 

as  an  element  of  damages 74,  84,  89,  106,  108,  621,  623 

SPECIFIC  ARTICLES— (See  Shocks— Trover  and  Conversion— 
Replevin) — 
notes  payable  in 210,  211 

SQUIB— 

case  of,  n ". 7,  8,    93 

STATUTES— 

provision  of,  in  respect  to  damages — importance  of 12 

for  damages  on  contracts , 14 

Civil  Code  Louisiana 14 

California 15 

views  of  David  Dudley  Field  on  intemational  codification,  n 19 

reform  in  respect  to  actions 62 

provisions  relating  to  interest  in  various  states,  n 196 

damages  on  protest,  n 212,  213 

bonds  generally 435  446 

damages  on  against  principal  and  sureties 616,  617 

damages  under,  for  injuries  resulting  in  death 490-516 

fixing  liability  of  telegraph  companies 861-362 

providing  for  the  taking  of  property  for  public  purposes 667 

against  setting  out  fires 672 

requiring  radroad  companies  to  fence  their  tracks 674 

providing  for  the  recovery  of  damages  resulting  from  the  sale  of 
intoxicating  hquors 675 

STIPULATED  DAMAGES— (See  Damages— Liquidated  Damages)— 

136-156 

contracts  in  reference  to 21,     29 

right  of  parties 136 

construction  of  contract  in  reference  to 137 

intent  as  to 138 

where  the  designated  sum  is  treated  as  a  penalty 138 

Uquidated  damages 139 

English  cases — where  held  a  penalty 139-144 

American  145-148 

where  regarded  as  liquidated  damages 148 

where  the  price  of  property  is  fixed 149 

can  never  exceed  the  liquidated  sum 150,  152 

in  case  of  usurj' 153 

propositions  relating  to 153,  154 

STIPULATION — (See  Damages — Stipulated  Damages) — 

as  to  interest 206 

STOCKS— (See  Contracts— Damages)— 

damages  on  contracts  relating  to 243 

distinction  between,  and  other  property 243 

none  on  principle 244 

rule  in  New  York 244 

as  to  time  and  place  of  deUvery 246 

distinction  between  a  sale  of,  and  a  promise  to  deliver  in  pajmient 

of  a  debt 246 

form  of  action  as  affecting 247 

47 


738  INDEX. 

STOCKS— Continued—  paoe 

in  case  of  conversion oo4,  b-j7 

argument  for  a  fixed  rule  in  case  of 043 

the  highest  vahie  in  case  of ;  •  •  G45 

distinction  between  stocks  and  other  property  in  case  of  conversion  647 

STREETS-                      ^       ^    ^  .  .... 

grade  of— common  lav?  doctrine W-ii 

SUBROGATION— (See  Insurance)— 

doctrine  applied  in  case  of  insurance 467 

SURETY— (See  Contracts— Bills  of  Exchange)— 

liability  in  case  of  fraud 571 

on  official  bond 616,  617 

SURGEONS— (See  Malpractice— Stipulated  Damages)— 

agreement  not  to  practice  as 141 .  142,  143 

malpractice  of— damages 24,  «.  67,  91,  n,  160,  n,  161 

negligence  of — damages 5L)0 

TELEGRAPH  COMPANIES— 

importance  of ;^47 

are  they  common  carriers j>17 

at  least  ordinary  care  required o4S 

measure  of  damages — order  for  salt |'49 

doctrine  of  Hadleij  v.  Baxcmkde,  explained  and  applied 350 

mistake  in  a  message  ordering  bouquets — damages 351 

a  shawl — damages 351 

stock  sold  and  other  stock  pur- 
chased   352 

delay  in  sending  a  message  ordering  property  attached — damages  3r>2 
mistakes  in  a  message  ordering  wheat  purchased,  etc. — damages  353 

delay  in  a  message  ordering  lepines  sold — damages 353 

where,  by  a  mistake,  a  message  is  wrongly  directed  and  delayed 

— damages 354 

where  damages  are  limited  to  interest — mistake — delay 355 

company  liable  for  damages  that  directly  and  naturally  result,  etc.  356 

damages  contemplated  as  a  result  of  a  breach 357 

limitation  of  liability  by  contract 357 

not  insurers — reasonable  rules _• _••;•_ .•••.•.••  ^58 

omission  or  refusal  to  send  a  message — provisions  limiting  liability  359 

inferences  from  the  decisions • .•••.•.'•  ^^^ 

where  there  are  connecting  lines,  diversity  of  decisions  as  to  liability  360 
can  a  party  to  whom  a  message  is  sent,  maintain  an  action  on  the 

contract 361 

may  sue  on  the  contract  in  New  York  and  in  some  other  states  . .  361 

action  may  be  maintained  in  such  cases  as  for  a  tort 361 

rule  different  in  England •_ 361 

statutes  of  various  states  relating  to  telegraph  companies 361 

conclusions  deducible  from  the  decisions 362 

TIME— 

of  valuation  in  cases  of  conversion 628-638 

replevin •  660 

personal  property 233-246 

TORTS— (See  Injury— DA:^rA6Es)— 

injuiy  to  the  person — damages 470-489 

injuries  resulting  in  death 490-516 

negligence — gross  negligence 517-537 

false  imprisonment 538-542 


INDEX.  739 

TORTS— Continued—  page 

malicious  prosecution 543-548 

libel  and  slander 549-555 

seduction  and  criminal  conversation 556-563 

fraud  and  deceit 564-569 

infringement  of  patents 574-580 

copjT.-  ghts 581-588 

injuries  to  property — trespass 589 

TRADE-MARKS— (See  DamagesI— 

damages  for  infringement  of 586,  588 

TREBLE  DAMAGES— (See  Damages— Torts)— 

in  case  of  infiingement  of  patents 578 

under  statutes 671 

TREES— (See  Trespass— Injury)- 

injuiy  to — destruction  of 593-594 

TRESPASS— (See  Injury— Torts—Damages)— 

injuiy  to  property  589 

defined '. • 590 

damages — general  principles     591 

to  real  estate 592 

injury  to  possession  of 592 

trees 593,  594 

tenant's  rights 594 

limit  of 595 

profits  as  an  element  of. 595 

aggravation — exemplary 596 

to  water  rights — general  rule 597 

limitation  of 598 

where  it  benefits  as  well  as  injures 599 

in  case  of  mining 601 

nuisance 602 

waste 605 

TROVER  AND  CONVERSION— 

distinction  between  and  trespass 627 

damages 627 

cause  of  controversy  as  to 628 

time  and  place  of  valuation 628 

value  at  the  time  of  the  conversion  where  it  prevails 628-638 

exception  to  the  rule •  •  631 

larger  rule  of  damages 631-635 

rule  of  fluctuating  value  in  New  York 6:34,  635 

Pennsylvania 635 

rule  in  Mississippi 636 

California 636,  637 

other  states ■ 637 

rule  should  be  the  same  as  on  a  breach  of  contract  to  deliver  per- 
sonal property • 637 

damages  varied  with  the  form  of  the  action 638 

technical  doctrine  in  different  actions •_  •  •  639 

reform  in  practice  and  procedure — effect  of 639-640 

argument  for  a  fixed  rule 640-643 

in  case  of  stocks 643-645 

the  rule  of  highest  value 645-646 

distinction  between  stocks  and  other  property — ^reason  for 647 

sounder  rule  between  the  extremes (M8 

damages  where  the  property  is  returned 648 


740  INDEX. 

TROVER  AND  CONVERSION— Continued—  page 

damages,  mitigation  of" 121,  G48 

pretium  affect ionis 649,  6.j0 

articles  of  virtu 640,  650 

accession 650,  653 

confusion • 654 

exemplaiy ; •' 655 

where  the  interest  is  qualified  or  limited 656 

notes — choses  in  action G5G,  657 

UNAUTHORIZED— 

acts  done,  when  liability  increased 52 

relating  to  slaves 52,    53 

UNITED  STATES— 

gold  or  silver 201 

legal-tender  acts 200-205 

treasury  notes 202-205 

USURY— 

stipulations  for  damages  not  allowed,  where  they  would  result  in 

.  an  evasion  of  the  usury  laws 22.  154 

statutes  of  various  states  relating  to,  n 197-200 

VALUATION— 

time  of,  in  actions  for  non-delivery  of  property 233-246 

conversion 628-638 

replevin 660 

VALUE— (See  Damages— Contracts— Injuiiy)— 

VALUED  POLICY -(See  Insurance)— 

effect  of 451 

VENDEE— (See  Contracts)— 

VENDOR— (See  Contracts)— 

VERDICTS— (See  Damages)— 

when  set  aside  as  excessive 683-699 

instances  where  set  aside 683-686 

in  cases  of  criminal  conversation 694-695 

reducing  as  excessive 695-697 

excessive,  when  a  remittur  not  allowed 698 

in  cei'tain  cases  allowed 698 

inadequate,  when  set  aside  as 699-701 

courts  will  not  set  aside 702,  703 

VINDICTIVE  DAMAGES— (See  Damages— Exemplary  Damages)— 

WAREHOUSEMEN— (See  Bailments)— 

WARRANTY—  (See   Contracts— Fraud    and    Deceit— Sale   op 
Chattels) — 
imphed  on  transfer  of  note  that  the  parties  to  it  were  able  to  con- 
tract  210 

signatures  are  genuine,  n. . .  261,  284 

of  kind  or  quality  of  property  sold •  •  •  256 

soundness  of  horse 257,  267 

in  an  agreement  to  construct  steam  boUers 257 

case  of  sale  of  animals 257-271,  273,  284 

slave 260 

a  re-sale  of  warranted  property 258,  259 


INDEX.  741 

WARRANTY— Continued—  pagh 

in  case  of  a  judgment  against  second  warrantor 261 

sale  of  pork 260 

slave 261 

,    contemplated  damages  recoverable  for  breach  of,  in  certain  cases.  261 

in  case  of  diseased  oxen 262 

sale  of  poisoned  hay  262 

cotton 262 

coal  dust 263 

cabbage  seed 263 

other  seed 264 

cotton 264 

of  the  prospective  value  of  stock 264 

breach  of,  m  sale  of  chattels — former  doctrine  of  damages 265 

general  rule 265-267 

price  paid — effect 265-270 

price  paid  governs  in  Illinois 268 

Connecticut 268 

reasons  for  the  general  rule 268 

exceptions  to 269 

right  to  rescind  in  case  of  breach  of 273-278 

damages  in  case  of. 273-278 

of  title 283 

damages  for  breach  of 283,  284 

of  signatures  to  note,  n 284 

covenants  of  in  deed — damages 367-398 

of  seizin — breach — general  rule 368-371 

exceptions 369-371 

English  rule 372-374 

American  rule 372-374 

partial  breach 374 

against  incumbrances — general  rule 374 

damages  nominal,  when 375 

when  incumbrance  cannot  be  removed. . .  376 

has  been  removed  by  the  grantee 377-379 

where  covenantor  advances  money  to  re- 
move   379 

maximum  amount  recoverable 379-383 

general — quiet  enjoyment 383 

damages — on  breach 384 

consideration  and  interest  as,  prevails  gen- 
erally  384,  385 

value  at  time  of  eviction 385 

adopted  in  Mass...  385 

Vt 385 

Maine.  385 
Conn. .  385 

La 385 

expense  of  the  suit  for  eviction  sometimes 

allowed  as,  n 384,  385 

arguments  in  favor  of  the  general  rule. .  .386-388 
fluctuating  rule... 388,  389 

views  as  to  the  proper  rule 389-392 

interest  as 391-394 

costs  and  counsel  fees  as 394 

where  the  eviction  is  partial 394-396 

grantee  purchases  the  superior  title 

396-398 

in  case  of  contracts  to  sell  land 398,  421 

leases 422-429 


742  INDEX. 

WASTE — (See  Trespass — Damages) —  page 

damages  in  case  of 605 

WATER— 

damages  for  injury  from 597 

WATER  RIGHTS— 

damages  for  injury  to 597 

WEALTH  OF  DEFENDANT— 

right  to  show  in  actions  for  torts  generally,  considered.  .127,  478,  479 

injuries  to  person  denied  in  Iowa  . . .  478 

N.  Y.,  n  478 

Mass.  . .  479 

allowed  in  N.  H., 

n  127,  479 

may  be  shown  in  actions  for  defamation,  n 128,  479,  554 

breach  of  promise  of  maniage 480 

seduction 558 

WIFE— 

action  for  crim.  con. — circumstances  shown 560,  561 

elements  of  damages 563 

verdict  seldom  set  aside 562 

enticing  away,  damages,  value  of 562 

WILLFUL  WRONGS— (See  Damages— Exemplary  Damages)— 

liability  for  remote  consequences  in  case  of 59-63 

WITNESSES— 

damages  for  failure  of 670 

WORK — (See  Contracts — Personal  Services)— 

WRONGDOER— (See  Injury— Damages— Motives)— 

WRONGFUL  ACTS— (See  Injury— Dam  ages)— 

a  larger  liability  in  case  of 52-63 

where  death  is  produced  by 492-500 


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